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How Governance Functions:

Case studies of seven countries through the

lens of Political Accommodation

GOVERNANCE AND PEACEBUILDING SERIES

CASE STUDY COMPILATION NO. 1

Mission Statement

Conflict Dynamics International is an independent, not-for-profit organization founded to pre-

vent and resolve violent conflict, and to alleviate human suffering resulting from conflicts and

other crises around the world.

Acknowledgements

Conflict Dynamics recognizes the following colleagues for their valuable contributions to the

development of this publication: Gerard Mc Hugh for designing the Political Accommodation

(PA) Methodology. Dr. Kirsti Samuels for contributions to the PA framework, designing the case

study methodology, and oversight and review of the case studies and edited case study publi-

cation. Ruth Allen for contributions to the PA framework. Gareth Price, Kurt Lebakken, Liz

Gaere, Mai Amir, Paul Simkin, and Tarig Hilal for feedback from use and review of certain case

studies. Elizabeth Wright, Marin O’Brien Belhoussein, Meghan Costello, and Sophia Dawkins for

creating successive drafts of the edited volume. Aaron Stanley, Albert Trithart, Amy Ouellette,

Elizabeth Wright, Jacob Uzman, Jillian Jaeger, Marin O’Brien Belhoussein, Mark Rafferty, and

Nanako Tamaru for research and drafting of individual case studies.

Conflict Dynamics wishes to express its sincere gratitude to the following supporting partners

who provided generous support to its programs during the period the case studies were re-

searched and the compilation was produced: Government of Denmark Ministry of Foreign Af-

fairs, European Union, Government of the Netherlands Ministry of Foreign Affairs, Government

of Norway Ministry of Foreign Affairs, Swedish International Development Cooperation Agency

(Sida), Government of Sweden Ministry for Foreign Affairs, Government of Switzerland Federal

Department of Foreign Affairs (FDFA), Government of the United Kingdom Department for In-

ternational Development (DFID), United States Institute of Peace (USIP).

The findings and conclusions expressed in the compilation do not necessarily reflect the views

or official policies of any of these supporting partners.

© 2018 Conflict Dynamics International. All rights reserved.

HOW GOVERNANCE FUNCTIONS | TABLE OF CONTENTS

TABLE OF CONTENTS

Preface: Thoughts from the President ............................................................................. I

Introduction ....................................................................................................................... II

Political Accommodation Methodology ........................................................................ VI

Introduction to Political Accommodation ............................................................................ VI

Foundations of Political Accommodation ............................................................................ VI

The Political Accommodation Methodology ....................................................................... VII

Political Structure .................................................................................................................................... IX

Systems of Election And Selection ....................................................................................................... X

Executive Branch ...................................................................................................................................... X

Legislative Branch ................................................................................................................................... XI

Public Participation ................................................................................................................................XII

Traditional and Customary Arrangements ..................................................................................... XIII

Bolivia ................................................................................................................................. 1

Executive Summary .................................................................................................................. 1

Background ................................................................................................................................ 2

Political Accommodation Framework .................................................................................... 3

Six Attributes of Political Accommodation ............................................................................ 4

Political Structure .....................................................................................................................................4

Systems of Election and Selection ..................................................................................................... 11

Executive Branch ................................................................................................................................... 16

Legislative Branch ................................................................................................................................. 18

Public Participation ............................................................................................................................... 21

Traditional and Customary Arrangements ...................................................................................... 23

Conclusion .................................................................................................................................................. 25

References .................................................................................................................................................. 26

Botswana .......................................................................................................................... 29

Executive Summary ................................................................................................................ 29

Background .............................................................................................................................. 30

Political Accommodation Framework .................................................................................. 31

Six Attributes of Political Accommodation .......................................................................... 31

Political Structure .................................................................................................................................. 31




HOW GOVERNANCE FUNCTIONS | INTRODUCTION



Conclusion ............................................................................................................................... 45

References ............................................................................................................................... 46

Ethiopia ............................................................................................................................. 49


Background .............................................................................................................................. 50









Conclusion ............................................................................................................................... 70

References ............................................................................................................................... 71

India .................................................................................................................................. 74


Background .............................................................................................................................. 75








Traditional and Customary Arrangements .................................................................................... 101

Conclusion ............................................................................................................................. 104

References ............................................................................................................................. 105

Malaysia .......................................................................................................................... 111

Executive Summary .............................................................................................................. 111

Background ............................................................................................................................ 112

Political Accommodation Framework ................................................................................ 113

Six Attributes of Political Accommodation ........................................................................ 113

Political Structure ................................................................................................................................ 113

Systems of Election and Selection ................................................................................................... 120


Executive Branch ................................................................................................................................. 123

Legislative Branch ............................................................................................................................... 127

Public Participation ............................................................................................................................. 129


Conclusion ............................................................................................................................. 134

References ............................................................................................................................. 134

Nigeria ............................................................................................................................ 137


Background ............................................................................................................................ 138









Conclusion ............................................................................................................................. 154

References ............................................................................................................................. 155

South Africa .................................................................................................................... 158


Background ............................................................................................................................ 159









Conclusion ............................................................................................................................. 185

References ............................................................................................................................. 186

HOW GOVERNANCE FUNCTIONS | PREFACE

I

PREFACE: THOUGHTS FROM THE PRESIDENT

It’s a sure thing: when people are excluded from political, economic, and socio-cultural oppor-

tunities it leads to strife in society and invites conflict.

The Political Accommodation Methodology is an approach to preventing and resolving violent

conflict, which we developed over several years to address exclusion and its consequences. It

enables people and their representatives to design, discuss and build consensus around op-

tions that could genuinely reconcile their different political interests, including options for gov-

ernance and political dialogue that can move society toward sustainable peace.

The method emphasizes peoples’ interests and is geared towards people and their representa-

tives trying to prevent or find ways out of conflict, as well as other peace practitioners.

Through interactive workshops, seminars, and bilateral meetings, Conflict Dynamics has sup-

ported use of the Political Accommodation Methodology in Somalia/Somaliland, South Sudan,

Sudan, and Syria to support actors in governments, political parties, armed opposition groups,

traditional leadership, women’s groups, and youth groups to develop relevant and practical

proposals for dialogue and governance.

Case studies from different contexts are integral to this work. They provide examples of both

accommodating and nonaccommodating arrangements when generating options for reconcil-

ing interests. Conflict Dynamics has incorporated these case studies into its approach and

support since 2010, and has had specific requests to generate case studies of interest.

I, along with my colleagues, am delighted to share this compilation of seven of our most de-

tailed case studies. They examine the governance systems of Bolivia, Botswana, Ethiopia, India,

Malaysia, Nigeria, and South Africa. This compilation is intended for use by those who live and

work in conflict-affected contexts and are interested in different options for how to improve

the governance system where they operate. It is also intended for use by regional and interna-

tional supporting actors, including mediators.

I highly commend my Conflict Dynamics colleagues who have developed these case studies

and the numerous people we have worked with who have provided feedback on the cases. We

trust that you will find them of high interest and value as you forge ahead with persistence and

determination in your work to sustain peace.

Gerard Mc Hugh

June 2018


II

INTRODUCTION

Governance case studies are indispensable in Conflict Dynamic International’s work to support

stakeholders in generating accommodating options for governance arrangements in Soma-

lia/Somaliland, South Sudan, Sudan, and Syria. We invite stakeholders to brainstorm what the

advantages and disadvantages would be of adopting one of the governance structures de-

scribed in these case studies in their own context. The overall purpose of the case studies is to

show how elements of governance systems interact in the real world and deepen the pool of

ideas for how governance structures may best support peace and stability in a specific context.

This compilation includes seven case studies that examine countries’ governance arrange-

ments through the lens of Political Accommodation.1 The Political Accommodation methodolo-

gy enables people and their representatives to design and discuss options for governance and

political dialogue that can reconcile their different political interests.2 The case studies are an

in-depth exploration of how current governance arrangements accommodate—or do not ac-

commodate—different political interests according to the six ‘Strands’ of the Political Accom-

modation governance framework.3 They assess the degree to which individual mechanisms

promote inclusivity and representation of diverse interests within a particular context.

These case studies are designed for making comparisons between contexts and generating

ideas for governance mechanisms that may advance political accommodation in a particular

context. Each case study examines constitutionally-defined governance arrangements, as well

as how the governance arrangements actually operate in practice. The case studies in this com-

pilation are not meant to be a road map for specific governance arrangements to adopt in any

particular context, as the experiences described may play out differently in other contexts and

cannot simply be transferred.

Content of Case Studies

The case studies included are Bolivia, Botswana, Ethiopia, India, Malaysia, Nigeria, and South

Africa. They cover a variety of regions, demographics, political systems (different types of fed-

eral and unitary states), and conflict environments (States emerging from civil war, those cop-

ing with low-intensity conflict, and those notable for their stability). Case study examples from

developing and newly industrialized countries have been selected to ensure that there is suffi-

cient similarity between the capacity and funds in the example countries and the contexts in

which Conflict Dynamics works.

1 Political Accommodation can be defined as the objectives, arrangements, processes, or outcomes of mutual con-

ciliation of people’s competing political interests and perspectives. Adapted from Brian Barry, “Political Accommoda-

tion and Consociational Democracy,” British Journal of Political Science 5, no. 4 (Oct. 1975): 477 – 505. 2 Here, ‘representatives’ is used broadly to mean political, community, and traditional leaders who represent, or

purport to represent, the interests of a constituency, by election, appointment, or inheritance. 3 The six Strands are: political structure; systems of election and selection; executive branch; legislative branch; pub-

lic participation; and traditional and customary arrangements.


III

Bolivia, Ethiopia, India, and Malaysia have provisions either for autonomy or for some sort of

asymmetric federalism; this flexibility in political structure has increased accommodation.

However, in many of the cases, decentralization—even if strongly outlined constitutionally—is

limited in practice, and this has reduced the prospect for successful accommodation. In Malay-

sia, while the State is highly centralized and subnational governments have limited autonomy

in practice, the State has been able to successfully spur consistent economic growth through

coordinated central planning that delivered economic benefits to all major ethnic groups in

Malaysia, thus easing tensions that might have required alternate accommodation.

Bolivia, Ethiopia, India, and Malaysia all provide examples of recognized special rights for eth-

nic, indigenous, minority, or otherwise marginalized groups. Overall, the introduction of these

rights has helped remedy previous grievances and increased accommodation. However, some

cases have also seen these protections reinforce existing divisions and increase competition

based on identity politics. In Malaysia, for example, preferential policies for ethnic Malays are

interpreted as both accommodating and discriminatory, and they seem to have contributed to

an entrenchment of ethnic identities.

Bolivia and Nigeria both use electoral mechanisms to try to ensure that the national executive

cannot be elected by a small portion of the population. Bolivia, Ethiopia, India, and South Africa

have implemented measures to successfully increase women’s representation in government;

while Bolivia, Ethiopia, and India have instituted measures to successfully increase minority

group representation.

Bolivia, Botswana, Nigeria, and South Africa all have mechanisms in place to increase public

participation in governance beyond voting in elections. These include referendums, the ability

to recall elected officials, local forums, public hearings, submitting oral/written comments, and

bringing national-level representatives to subnational areas. However, the extent to which

these mechanisms are implemented successfully varies. While South Africa has some of the

most robust public participation mechanisms in the world, other countries’ mechanisms are

more limited.

India, Malaysia, and Nigeria have grappled with how to accommodate diverse religious com-

munities within their States. India maintains separate personal laws for different religions. Ma-

laysia has both civil and Sharia courts and grants each subnational state control over Islamic

law. Similarly, in Nigeria, subnational states have the authority to decide whether secular, Is-

lamic, or customary law, or a hybrid system, is applied by the judiciary.

Botswana, Malaysia, and South Africa incorporate traditional leaders into the formal govern-

ance system. In the cases of Botswana and South Africa, they are integrated into the legislative

branch, while in Malaysia they are part of the executive. In all three cases, this integration has

been cited as both an accommodating and a divisive force.

Each of these case studies highlights ways in which States struggle to bridge various accom-

modating mechanisms enshrined in the constitution and legal code, and their effective imple-

mentation in practice.


IV

At a Glance: Accommodating Aspects in the Case Studies

ACCOMMODATING ASPECTS LESS ACCOMMODATING ASPECTS

BOLIVIA

Indigenous rights and autonomy

Recognition of multiple national identities

Decentralization

Proportional representation and two-round

majority voting

Women’s and indigenous quotas

Mechanisms for public participation

Inconsistent implementation

Single dominant political party

Limited checks on national executive

BOTSWANA

Integration of traditional leaders into national

upper house

Mechanisms for public participation†

Limited decentralization



Poor accommodation of women, minority tribes,

opposition

ETHIOPIA

Ethnic federalism: self-determination, self-

government, and cultural rights to ethnic groups

All nationalities represented in national upper

house

Recognition of public participation




Restricted public participation space

INDIA

Asymmetric and linguistic federalism

Subnational fiscal autonomy

Women’s and minority quotas

Separate personal laws for different religions

Tribal areas with tribal justice systems

Significant numbers appointed or indirectly

elected


MALAYSIA

Centralized, asymmetric federalism

Subnational control over Islam

Consistent economic growth

Integration of traditional leaders into executive

levels



First-past-the-post and high numbers appointed


Special rights for majority Malays

Limited space for public participation

NIGERIA

Parallel consent voting for executive leadership‡

Diverse and inclusive executive bodies

Mechanisms for public participation§

Subnational control over Islam and local judicial

systems

Significant corruption



Legislature has low capacity

SOUTH

AFRICA

Political party quotas for women

Representative legislature


Integration of traditional leaders into legislative

Independent court system




Implementation relies on good faith of political

parties

† However, this is mostly through kgotlas, traditional local-level forums, which tend not to be welcoming to women and mi-

nority tribes.

‡ The winning candidate is the candidate who receives a majority of votes in the election plus no less than 25 percent of

votes cast in at least two-thirds of the states and the federal capital territory (Abuja), or in the case of governors, no less

than 25 percent of votes cast in all local government areas in the state.

§ However, citizens’ ability to recall an elected official can be manipulated by elites to exert influence over a legislator.


V

At a Glance: Key Themes in Case Studies

BOLIVIA BOTSWANA ETHIOPIA INDIA MALAYSIA NIGERIA SOUTH

AFRICA

Is the country in current conflict or post-conflict since 1990?

Political Structure

Does the constitution outline a federal state system?

Is authority on the ground rela-tively decentralized?

Does the law provide for the pos-sibility of special territorial rights?

Systems of Election and Selection

Are elections determined through proportional representation or a mixed system?

Are there reserved or voluntary quotas for women?

Are there reserved or voluntary quotas for minority groups?

Executive Branch

In practice, is the executive ac-countable to the legislature?

Legislative Branch

Is national legislation subject to executive veto?

Public Participation

In practice, are there significant measures for public participation?

Traditional and Customary Arrangements

Are traditional leaders or institu-tions integrated into the formal national governance system?

In practice, are there special pro-tections for ethnic minorities?

Are there special laws protecting minority language rights?

Are there provisions for religious law or court systems?

HOW GOVERNANCE FUNCTIONS | POLITICAL ACCOMMODATION METHODOLOGY

VI

POLITICAL ACCOMMODATION METHODOLOGY

1. Introduction to Political Accommodation

How do people deal with political differences? This question is central to the effective running

of any society. It matters especially when societies experience violent conflicts and political

change. In these situations, Political Accommodation offers a powerful idea about how people

can sort out their differences peacefully.

Political Accommodation is about people with diverse interests taking account of others’ per-

spectives without compromising their own core interests. This can lead to finding compatible

interests, and to reaching agreements on parameters for continued dialogue, or on how peo-

ple are willing to be governed.

Practically, Political Accommodation addresses four people-centered elements:

1. People committing to the objective of reconciling others’ interests with theirs, even if

they may not agree with them.

2. People engaging in a trust- and consensus-building process in pursuit of that objective.

3. People generating ideas for specific arrangements and processes that can fairly bal-

ance people’s different interests in society.

4. People achieving outcomes that everyone feels they can live with.

As a methodology, Political Accommodation is a set of tools to achieve these four elements.

The tools are flexible so users can tailor them to their needs and situations. They offer straight-

forward approaches to building consensus, designing dialogue processes, and generating ide-

as for specific governance arrangements.

2. Foundations of Political Accommodation

The idea of Political Accommodation builds on 50 years of social science theory about how

people with different political interests can live together and participate in governance. This

specific methodology evolved from Conflict Dynamics’ and partners’ direct experiences in situa-

tions of armed conflict over more than ten years. That work revealed needs that other ap-

proaches to peacemaking and peacebuilding struggle to meet, particularly related to links be-

tween governance and drivers of conflict. By responding directly to these needs, the Political

Accommodation methodology emerged as an approach with distinct benefits, as summarized

in the table below.


VII

Table 1: Distinct Features of the Political Accommodation Methodology

POLITICAL ACCOMMODATION IS ABOUT… POLITICAL ACCOMMODATION IS NOT ABOUT…

Fairly balancing people’s political interests Opponents buying each other off

Valuing the diversity of society Elites making deals among themselves, for themselves

Enabling people to fully develop their own process

options

Imposing prescriptions from outside

Enabling people to imagine creative governance

options that fit their contexts

Favoring particular models of governance over others

Understanding where consensus exists or can be

fostered, and building confidence

Forcing people to conform to the ideas of one group in

society

Building peace through addressing drivers of

conflict linked to how political systems work

Statebuilding or governance reform in the absence of

peacebuilding

3. The Political Accommodation Methodology

One of the three components of the Political Accommodation methodology is the governance

framework of six ‘Strands’ (focal areas) for considering how governance arrangements can ac-

commodate people’s different interests. This framework offers a way to locate areas of a politi-

cal system that drive conflict. It also offers a structure to guide creation of new options that can

address factors driving conflict.

The six Strands of the framework each represent complementary paths that can contribute to

political accommodation. As shown in Figure 1, the six governance Strands are:

Arrangements

As used here, an arrangement is a set of rules, provisions, practices, or institutions organized to per-

form a particular function. Arrangements can be formal or informal. They can be agreed principles or

actual operational practices. For example, a law creating an anticorruption commission and a monthly

meeting of chiefs based on an unwritten understanding are both arrangements.


VIII

Figure 1—Six Strands of the Governance Framework

Decisions in one Strand shape how all the other Strands function in practice. The governance

framework helps users to consider these relationships and develop options that represent co-

herent choices across all the Strands. This approach gives options the best chance of working.

Levels and interactions

The governance framework guides analysis and options at two levels: the whole-entity level

(e.g., the national level for a State; the central authority in an area of special autonomy) and the

subentity level (e.g., the local district, province, or state level for a State; individual members in

a confederation). Users can adopt this two-level approach to ensure that governance ar-

rangements for the whole entity complement those at other levels, and likewise that lower-

level arrangements do not contradict each other or any arrangements at the whole-entity level

(see Figure 2).

The framework is applicable to at least two types of political interactions: those within single

entities (e.g., within a State; within an area of special autonomy; within a local district) and

those among political entities interacting politically or economically (e.g., between states; be-

tween areas of special autonomy and states; between subnational units in a federal system).

Branch


IX

Figure 2—Governance Framework—Application at Two Levels

Governance Strand overviews

This section presents each governance Strand, including definitions and examples, and pro-

vides guidance on the choices each Strand offers. The Strand overviews are meant to support

open and creative thinking about options. Rather than present a comprehensive set of choices

or a prescriptive checklist, the overviews underline important considerations, and explain how

the Strands contribute to political accommodation.

1. POLITICAL STRUCTURE

Political structure encompasses the units that make up a political entity and their boundaries,

authority, and relationships to each other. This Strand includes three components relevant to

Political Accommodation: structure, division of powers, and resource distribution and control.

1. Structure: The hierarchy of political units (e.g., national, state, local), their borders, and

how they interact, including how disputes between different political units are resolved.

2. Division of powers: The authority of different political units to decide policy.

3. Resource distribution and control: The authority of different political units to raise and

expend revenue, and the redistribution of revenue among political units.

Relevance for Political Accommodation

The political structure determines the levels at which people can express their political inter-

ests and perspectives. In a highly centralized system, the central authority (e.g., the national

government) is the main avenue for people to voice their political interests, while decentralized

systems offer multiple avenues. If lower-level authorities (e.g., state or local government) have


X

sufficient political powers and fiscal capacity, they can make and implement decisions that ac-

count for their constituents’ interests. In addition, the political structure can provide opportuni-

ties to these lower-level authorities to share their constituents’ interests at the central level.

2. SYSTEMS OF ELECTION AND SELECTION

Systems of election and selection are the method of choosing candidates and representatives

through converting votes into seats or positions, or through appointment. This Strand includes

three components relevant to Political Accommodation: design, administration, and political

parties.

1. System design: The method for translating votes into seats or positions, or the method

of appointment at each level of representation or government (e.g., national, state, lo-

cal).

2. System administration: The structure and role of institutions responsible for election

management, deciding boundaries, deciding who is eligible to vote and stand for office,

and dispute resolution; or, in the case of a selection system, overseeing how candidates

are nominated.

3. Political parties: Formation and regulation of political parties, and selection of positions

or candidates within their ranks.

4. Special provisions: Mechanisms, such as quotas, to provide ‘descriptive’ representation

on the basis of criteria such as gender, ethnicity, religion, or caste.


Systems of election and selection are paths for representation of a range of groups in society,

giving these groups a stake in governance and allowing them to express their interests and

perspectives peacefully. In an electoral system, arrangements shape the incentives for parties

or candidates to appeal for support beyond their core base, and for voters to consider repre-

sentation outside their own group. In a selection system, the selecting authority can incorpo-

rate groups that might be excluded in an electoral system.

3. EXECUTIVE BRANCH

The executive branch is responsible for administering day-to-day affairs. In a State, the execu-

tive branch consists of the head of State, head of government, ministries, civil service, and other

institutions. In a regional organization or multi-entity configuration, the executive branch could

consist of a secretary general or chairperson, a commission or secretariat, and other institutions

depending on the entity. This Strand includes two components relevant to Political Accommoda-

tion: structure and powers, and decision making.


XI

1. Structure and competencies: The composition of the executive (e.g., president, prime

minister, council, chairperson, commission), and executive powers (e.g., issuing execu-

tive orders, serving as commander in chief).

2. Decision-making rules and procedures: How the executive makes decisions (e.g., voting

or consensus in a multimember executive).

3. Checks on the executive: How other branches of the governance arrangement (legisla-

tive or judicial) or the general public can check the power of the executive (e.g., legisla-

tive veto, impeachment or vote of no confidence, judicial review, recall election, term

limits).

4. Inclusivity: How the executive includes a variety of identity groups, such as in the minis-

tries, civil service, and security sector if a State, and the commission or secretariat if a

regional organization.


The executive branch can support political accommodation through how it makes decisions

about implementing laws and policies. It can also support political accommodation by repre-

senting and allocating decision-making authority and resources to a diverse range of interests

in its institutions, such as the ministries, civil service, security sector, commission or secretariat,

depending on the type of entity.

4. LEGISLATIVE BRANCH

The legislative branch is made up of representatives responsible for debating, approving, and

amending laws for a political entity. This Strand includes three components relevant to Political

Accommodation: structure and powers; decision making; and committee arrangements.

1. Structure and competencies: The number of chambers, membership of each chamber

(e.g., representatives of subentity units, traditional/customary, or religious authorities),

term limits, methods of dissolution, and legislative powers (e.g., passing legislation and

budget, overseeing the security sector).

2. Decision-making rules and procedures: How the legislature makes decisions (e.g., the

number of votes needed for passing legislation or constitutional amendments, the role

of party leadership).

3. Checks on the legislature: How other branches of the governance arrangement (execu-

tive and judicial) and the general public can check legislative power (e.g., executive veto,

judicial review, recall election).

4. Committee processes and arrangements: Formation of legislative committees (e.g., top-

ic, purview, and membership), and how bills move from committee to the full chamber

for action.


XII


The representative nature of the legislative branch allows for the expression of diverse political

interests. Additional chambers or reserved seats can support accommodation of specific inter-

ests, such as those related to political units, minority groups, or traditional and customary au-

thorities. How the legislature makes decisions can also affect the representation of interests.

For example, if decisions are made by majority vote and one party holds a majority of seats,

that party may have little incentive to accommodate minority parties, or minority views within

the majority party.

5. PUBLIC PARTICIPATION

Public participation encompasses mechanisms and systems through which the public influ-

ences and shares control over priority setting, policy making, and resource allocation within a

political entity. In this context, the public includes all people (regardless of citizenship) affected

by governance arrangements in a given territory or association. This Strand includes two com-

ponents relevant to Political Accommodation: influence on decisions and access to information.

1. Engagement with the executive: How the public influences executive decision making

(e.g., through town hall meetings on proposed policies, online petitions).

2. Production of legislation: How the public is included in the production of legislation

(e.g., through open legislative sessions, solicitation of public comments on draft legisla-

tion).

3. Local-level decision making: How the public engages in decision making at the local lev-

el, including participatory budgeting, public engagement in setting priorities for local

development, and traditional or customary forums for public participation (e.g., village

councils).

4. Referendums: Popular votes on policy (either binding or nonbinding), which can be re-

quired by the constitution, initiated by the executive or legislature, or initiated by the

public through a petition.

Public Participation vs. Elections in the Political Accommodation Methodology

It is important to note that public participation under the governance framework is distinct from sys-

tems of election and selection. While elections are a means for people to directly register their prefer-

ences, public participation deals with a variety of ways the public expresses their views and accesses

information between moments of election and selection.


XIII


Public participation can contribute to political accommodation by opening avenues for the

public to influence governance beyond representation in governance institutions. Public partic-

ipation can improve the legitimacy of policy decisions and motivate accountability of repre-

sentatives to constituents, as it broadens opportunities for people to voice their interests.

6. TRADITIONAL AND CUSTOMARY ARRANGEMENTS

Traditional and customary arrangements are patterns of governance, including institutions,

norms, and processes that are rooted in traditions or have evolved from practice.4 They may

have religious or cultural dimensions. This Strand includes three components relevant to Political

Accommodation: executive roles and interactions; legislative roles and interactions; and territo-

rial autonomy.

1. Executive roles and interactions: The role(s) traditional and customary arrangements

play in executive decision making, through both their informal executive responsibilities

(e.g., powers held by a monarch or chief), and their interaction with formal executive

structures (e.g., with a ministry or commission for tribal affairs).

2. Legislative roles and interactions: The role(s) traditional and customary arrangements

play in production of legislation, through traditional and customary legislative bodies

(e.g., tribal councils) and incorporation into formal legislative structures (e.g., through an

upper house representing traditional authorities, or formal consultative status).

3. Judicial activities: How traditional and customary arrangements facilitate local reconcilia-

tion and restorative justice through customary laws, courts, and forums.

4. Territorial autonomy: The degree to which tribal or other groups have autonomy to fol-

low customary laws or are granted special provisions relating to religious law, language,

land use, customary justice, or the recognition of identity for certain groups.


Collaboration between traditional and customary arrangements and formal governance struc-

tures can encourage political accommodation if traditional leaders and institutions are repre-

sentative and legitimate in the eyes of constituents. In such situations, traditional and custom-

ary arrangements can bridge the gap between elites and the public, especially in contexts with

widespread illiteracy, marginalized areas, community tensions, or a high degree of linguistic,

cultural, or religious plurality.

4 Including, but not limited to, monarchy and aristocracy, chieftaincies with sections, chiefdoms, and age sets. This

Strand emerged from Conflict Dynamics’ experiences in Sudan, South Sudan, and Somalia. Conflict Dynamics is

conducting ongoing research on traditional and customary arrangements in other parts of the world, with the goal

of producing a refined version of this Strand for broader application.

HOW GOVERNANCE FUNCTIONS | BOLIVIA

1

BOLIVIA

Executive Summary

This case study focuses on Bolivia’s governance arrangements analyzed through the lens of

Political Accommodation. Political Accommodation considers how governance options can

reconcile different political interests to move society toward sustainable peace. The case study

examines governance provisions in the constitution and relevant legislation across six focal ar-

eas: 1) political structure; 2) systems of election and selection; 3) executive branch; 4) legislative

branch; 5) public participation; and 6) traditional and customary arrangements. It discusses

implementation of those arrangements, and assesses how the arrangements enable or hinder

reconciliation of different interests. The case study highlights both accommodating and nonac-

commodating arrangements to consider.

Bolivia approved a new constitution in 2009, establishing a series of new governance arrange-

ments. The new constitution, which was passionately debated and ultimately approved by ref-

erendum, contains a number of provisions that attempt to accommodate Bolivia’s sizeable in-

digenous populations, which historically were marginalized. The constitution acknowledges

multiple national identities within the State, devolves significant powers to subnational entities,

and creates a process where subnational entities can apply for autonomy. The electoral system

features two-round majority voting for many of its elections, reserves seats for indigenous

populations in the national legislature, and establishes gender parity across all legislative levels,

which has led to high levels of women’s participation. The constitution guarantees a number of

avenues for public participation, including elevating civil society to an official public monitor

role. Through referendums, the public can recall elected officials and has a say in constitutional

amendments, creation of autonomous entities, and international treaties. Indigenous popula-

tions may set up their own judicial systems, and territorial autonomy provisions provide indig-

enous groups the ability to govern their own communities.

The constitution’s new governance arrangements have contributed to greater representation,

participation, and economic inclusion. However, many mechanisms have not been defined or

fully implemented, and this has led to confusion and increased tensions.


2

Table 1—Accommodating and Less Accommodating Aspects in Bolivia


BOLIVIA

Indigenous rights and autonomy

Recognition of multiple national identities

Decentralization

Proportional representation and two-round

majority voting

Women’s and indigenous quotas





Background

Despite significant natural resource deposits, Bolivia is the poorest country in Latin America. It

is a relatively small country with a population of about ten million.5 Approximately 60 percent

of Bolivia’s population identifies as at least one of the country’s many indigenous groups, which

historically were very marginalized. The majority of the indigenous populations live in the west-

ern highlands departments, while the populations of the eastern lowlands departments tend

to be of more European and mestizo descent and to be more prosperous.6 However, the in-

digenous populations in Bolivia are very heterogeneous, and ‘indigenous’ and ‘mestizo’ are not

exclusive categories, as many people identify as both.7 Bolivia has not had large-scale violent

conflict in the last 30 years. The Law of Popular Participation (1994) started Bolivia’s decentrali-

zation process, creating municipalities and devolving significant executive, legislative, and ad-

ministrative authority and 20 percent of the national budget to the municipal level.8

In 2008 and 2009, Bolivia embarked on a controversial constitutional reform process led by

President Evo Morales to try to rectify a history of political and economic institutional exclusion

of indigenous populations. The process polarized the country’s political parties and the popula-

tion over issues of departmental autonomy, land reform, and natural resource revenue distri-

bution. President Morales and his Movement Toward Socialism (MAS) political party champi-

5 Patricia Rey Mallén, “Bolivian Census Highlights How Changes In Bolivian Demographics Might Affect President Evo

Morales’ Power Base,” International Business Times (7 August 2013). http://www.ibtimes.com/bolivian-census-

highlights-how-changes-bolivian-demographics-might-affect-president-evo-morales. 6 Nancy Postero, “The Struggle to Create a Radical Democracy in Bolivia,” Latin American Research Review 45 (2010):

64. 7 Mala Htun and Juan Pablo Ossa, “Political Inclusion of Marginalized Groups: Indigenous Reservations and Gender

Parity in Bolivia,” Politics, Groups, and Identities 1, no. 1 (2013): 11. 8 Jason Tockman, “Decentralisation, Socio-territoriality and the Exercise of Indigenous Self-governance in Bolivia,”

Third World Quarterly 37, no. 1 (2016): 3.


3

oned a transformation of State structures so they respected and promoted indigenous rights.9

The departments in eastern Bolivia (known as the eastern lowlands or the ’Media Luna’)10 lob-

bied for significantly increased autonomy and authority, while many western highlands resi-

dents favored the creation of a socialist state.11 The two regions’ opinions increasingly diverged

during the constitutional reform process, with some contending that MAS manipulated negoti-

ations.12 The government put the constitution to a public referendum on 25 January 2009, and

despite the contentious drafting process, the constitution passed with 61 percent of those vot-

ing approving the constitution.13

Political Accommodation Framework

The purpose of the Political Accommodation methodology is to prevent and resolve violent

conflict. The methodology enables people and their representatives to design and discuss op-

tions that can reconcile their different political interests.14 These include options for govern-

ance and political dialogue that can move society toward sustainable peace.

The Political Accommodation governance framework offers a way to locate areas of a political

system that drive conflict and provides a structure to guide creation of new governance op-

tions that can potentially accommodate competing political interests. The framework consists

of six focal areas or ‘Strands’, each representing complementary paths that can contribute to

political accommodation. The governance Strands are:

1. Political structure

2. Systems of election and selection

3. Executive branch

4. Legislative branch

5. Public participation

6. Traditional and customary arrangements

9 Roberta Rice, “Intercultural Democracy and Civil Society Participation in the New, Decolonized Bolivia” in Re-

Imagining Community and Civil Society in Latin America and the Caribbean, eds. Roberta Rice and Gordana Yovanovich

(New York: Routledge, 2017): 132. 10

These four departments—Santa Cruz, Beni, Pando, and Tarija—are known as the “Media Luna” for the shape they

make on a map of Bolivia, resembling a crescent moon. 11

Almut Schilling-Vacaflor, “Bolivia’s New Constitution: Towards Participatory Democracy and Political Pluralism?”

European Review of Latin American and Caribbean Studies (April 2011): 11. 12

Postero, “Radical Democracy in Bolivia,” 67. 13

Sara Miller Llana, “Bolivia Sets New Global High Mark for Indigenous Rights,” The Christian Science Monitor (27 Janu-

ary 2009), http://www.csmonitor.com/World/Americas/2009/0127/p01s01-woam.html. 14

Here, ‘representatives’ is used broadly to mean political, community, and traditional leaders who represent, or

purport to represent, the interests of a constituency, by election, appointment or inheritance.


4

Decisions in one Strand affect how the others function in practice. Accordingly, it is important

to consider their relationships and develop options that represent coherent choices across all

the Strands.

This case study examines governance provisions across the six Strands and identifies where

Bolivia has used specific mechanisms that promote accommodation of different interests.

Six Attributes of Political Accommodation


Bolivia is a unitary, decentralized state with autonomous areas. Departments, municipalities,

and indigenous autonomies are considered “autonomous zones” with constitutionally-defined

powers. There is a mechanism for other indigenous territories to gain autonomy. Increased de-

centralization and autonomy have improved representation and participation in Bolivia; howev-

er, incomplete frameworks and implementation have also heightened tensions.

a. Structure

Bolivia is a unitary, decentralized state with autonomous areas.15 However, it also resembles a

federal state, since the constitution explicitly recognizes subnational levels of government and

protects their exclusive competencies. The constitution describes Bolivia as a ‘plurinational’

State, explicitly acknowledging that multiple national identities exist within the State. It recog-

nizes and attempts to provide equal political, social, and economic rights to the country’s in-

digenous populations. It also extends the rights of free determination to the indigenous popu-

lations, granting them rights to autonomy, self-governance, cultivation of their individual cul-

tures, and recognition of their institutions.16

Bolivia’s political structure primarily consists of the national government, departments, regions,

provinces, municipalities, and rural native indigenous autonomies (autonomías indígenas origi-

narias campesinas, or AIOCs).17 At the national level, Bolivia is governed by a president and bi-

cameral legislative assembly (the Chamber of Deputies and the Chamber of Senators). De-

partments are headed by a governor and legislative assembly, regions by an executive council

and assembly, and municipalities by a mayor and municipal council.18

15

BOL. CONST., 2009, art. 1. 16

BOL. CONST., 2009, art. 2. 17

BOL. CONST., 2009, art. 269, 280, cl. 1. 18

BOL. CONST., 2009, art. 278, 279, 281, 283.


5

Figure 3—Bolivia’s Political Structure

Departments are the largest level of subnational government, followed by provinces, then mu-

nicipalities. Regions, which are an optional level of governance and do not necessarily exist

within each department, are composed of either two or more provinces or two or more munic-

ipalities that have geographical continuity and are within the same department.19 Rural native

indigenous autonomies AIOCs parallel this structure and thus also vary in size. Regions, munic-

ipalities, and state-recognized indigenous territories can all be converted into AIOCs, which

may cross regional and municipal (but not departmental) borders.20 AIOC is the overarching

term for these entities, but they are usually referred to by their specific level of government.

For example, once a municipality has converted to an AIOC, it is usually called a rural native

indigenous municipality. A sample configuration of these different levels (except for indigenous

territories) is shown in Figure 4.

19

BOL. CONST., 2009, art. 280, cl. 1. The state-recognized indigenous territories are also known as Tierras Comunitarias

de Origen, or TCOs. Albó and Romero, Autonomías Indígenas, 15. 20

BOL. CONST., 2009, art. 280, 291, 293.


6

Figure 4—Sample Configuration of Bolivia’s Levels of Government

b. Division of powers

Most powers fall under the national government’s authority or are shared between national

and subnational authorities. However, departments, municipalities, and AIOCs are considered

‘autonomous zones’ with constitutionally-defined legislative, fiscal, and deliberative (policy-

making) powers, some of which are exclusive to them.21 They also have equal standing with

each other, meaning that none of those entities is considered subordinate to another.22 Re-

gions are administrative and planning units and provinces are administrative units solely.23 Nei-

ther regions nor provinces have legislative authority, but powers can be transferred or dele-

gated to regions.24

Prerogative powers belong to the national government and cannot be transferred or delegat-

ed. Exclusive powers belong to a certain level of government, and their regulatory and execu-

tive authority may be transferred or delegated. For concurrent powers, legislation is deter-

mined nationally, but subnational authorities exercise regulatory and executive authority.

21

BOL. CONST., 2009, art. 277, 283; and Xavier Albó and Carlos Romero, Autonomías indígenas en la realidad boliviana y

su nueva constitución (La Paz: Vicepresidencia del Estado Plurinacional de Bolivia, 2009), 12. 22

BOL. CONST., 2009, art. 276. 23

BOL. CONST., 2009, art. 280, cl. 1; and Albó and Romero, Autonomías Indígenas, 12. 24

BOL. CONST., 2009, art. 281, 293, 301.


7

Shared powers are those subject to basic national legislation but where legislative develop-

ment and regulatory and executive authority correspond to the autonomous territories. Any

powers not listed in the constitution belong to the national level.25 See Table 2 for the distribu-

tion of major powers, aside from AIOC powers which are described after the table.

Table 2—Distribution of Major Powers across Levels

NATIONAL-

LEVEL

PREROGATIVE

AUTHORITY

NATIONAL-LEVEL

EXCLUSIVE

AUTHORITY

NATIONAL

AND

SUBNATIONAL

CONCURRENT

AUTHORITY

NATIONAL

AND

SUBNATIONAL

SHARED

AUTHORITY

AUTONOMOUS

DEPARTMENTAL

EXCLUSIVE

AUTHORITY

AUTONOMOUS

MUNICIPAL

EXCLUSIVE

AUTHORITY

Financial and

monetary

policy

Customs

State security,

defense, the

armed forces,

and the police

Foreign policy

Immigration

Public

enterprises

Hydrocarbons

National taxes

Economic

policy†

Health and

education

policies

Electoral system

Environmental

policy

Energy policy

Communications

Postal service

Infrastructure

Tax policy

Strategic natural

resources

Justice

Labor policies

Territorial

planning and

land registry

Tourism

Housing

policies‡

Management

of health and

education

systems

Protection of

environment

Science and

technology

Conservation

of forest

resources

Water

Public

security

Public

housing

Agriculture,

livestock,

hunting, and

fishing§

Departmenta

l and

municipal

elections

International

relations

Telecommuni

cations

Taxes

exclusive to

autonomous

governments

Forums for

citizen

conciliation#

Human

development

Departmental

referendums

and

consultations

Land registry

and regulation

Transportation

infrastructure

Agricultural

health and

safety services

Departmental

energy projects

Departmental

tourism

Departmental

taxes and fees

Commerce

within the

department

Hydrocarbons

within the

department*

Human

development

Municipal

referendums

and

consultations

Environmental

protection

Land registry

and regulation

Transportation

infrastructure

Municipal

energy

projects

Food

regulation

Local tourism

Municipal

taxes and fees

Sanitation

Micro-irrigation

Basic services

Hydrocarbons

within

municipal

territory††

† BOL. CONST., 2009, art. 298, cl. 1.

‡ BOL. CONST., 2009, art. 298 cl. 2.

§ BOL. CONST., 2009, art. 299.

# BOL. CONST., 2009, art. 299.

* BOL. CONST., 2009, art. 300, cl. 1.

†† Bol. Const., 2009, art. 303.

25

BOL. CONST., 2009, art. 297.


8

AIOCs maintain exclusive authority over economic, social, political, organizational, and cultural

development; management of renewable natural resources; land regulation and use; infra-

structure; justice and conflict resolution, in accordance with the constitution; tourism; taxes

and fees within their jurisdiction; and housing and town planning (among other powers).26 They

have concurrent authority over health policy; education, science, technology, and research

plans; forestry and environmental conservation; irrigation and water and energy sources; infra-

structure; agriculture; and monitoring of hydrocarbon and mining activities.27 Rural native in-

digenous villages maintain the same competencies as the municipal governments, plus they

have shared authority over international exchanges within the foreign policy framework and

over a few other competencies.28

Declaring autonomous status

As of August 2014, 13 municipalities and nine indigenous territories had started the conver-

sion process into AIOCs.29

The Framework Law of Autonomies and Decentralization (2010) regulates procedures for

transferring and delegating authority and for territories to become autonomous entities,

among other processes.30 It outlines three territorial methods for obtaining indigenous auton-

omy: through regions, municipalities, or indigenous territories. The process involves seven

steps, which vary depending on the method chosen, but generally include a referendum to de-

clare autonomy; community drafting of an autonomy statute; and approval of the statute by

the Ministry of Autonomy, the community, and Constitutional Review Committee.31 (See Special

Feature: Declaring Indigenous Autonomous Status.)

26

BOL. CONST., 2009, art. 304, cl. 1. 27

BOL. CONST., 2009, art. 304, cl. 3. 28

BOL. CONST., 2009, art. 300, cl. 2, 304, cl. 2. 29

Tockman, “Decentralisation,” 3. 30

BOL. CONST., 2009, art. 271. 31

Andean Information Network, “Indigenous Autonomies in Bolivia; Part I: Legal Guidelines and Gaps,” (3 February

2012), http://ain-bolivia.org/2012/02/indigenous-autonomies-in-bolivia-part-i-legal-guidelines-and-gaps/.


9

SPECIAL FEATURE: DECLARING INDIGENOUS AUTONOMOUS STATUS

The Framework Law of Autonomies and Decentralization (2010) details a seven-step process for re-

gions, municipalities, and indigenous territories to obtain rural native indigenous autonomy:

1. The entity must document its shared ancestral territory and culture and its capacity to provide

social, political, judicial, and economic in-stitutions for autonomous government.

2. Municipalities and regions hold a referendum on starting the autonomy process. Indigenous terri-

tories do not have to hold a referendum.

3. If the referendum passes, the entity must elect an assembly to draft the AIOC’s autonomy

statute, providing a framework for governance.

4. The community has 360 days to debate and approve the statute.

5. The Ministry of Autonomy must approve the statute.

6. The community holds a referendum on the statute.

7. If the referendum approves the statute, the Constitutional Review Committee reviews it before

the entity can implement the statute.

Source: Framework Law of Autonomies and Decentralization Act 31 of 2010 (Bol.) and “Indigenous Au-

tonomies in Bolivia; Part I.”

Many regions, municipalities, and indigenous territories have decided not to pursue indige-

nous autonomy or have not met the requirements for autonomy. Many communities have

found the process of declaring and ratifying autonomy frustrating and exceedingly complex.32

Others are satisfied with the increased local control, representation, or material gains that re-

sulted from the 1994 decentralization reforms and do not feel the lengthy conversion process

to become an AIOC is necessary. Official territorial boundaries are often incongruous with an-

cestral indigenous territories, meaning that AIOCs will not necessarily help restore the territo-

rial integrity of indigenous nations.33 This is compounded by the fact that many indigenous

people no longer reside in the areas where their precolonial ancestors were from. Finally, the

MAS party has grown increasingly ambivalent to indigenous autonomy, as shown by failures to

support autonomy efforts, the limited resources available, and even legal obstacles to conver-

sion.34

It remains to be seen what effect indigenous autonomy will have on departmental authority.

There is currently an absence of clear guidelines, which has restricted the ability to firmly es-

tablish authorities and competencies within the separate jurisdictions.35 The lack of clarity,

32

Andean Information Network, “Indigenous Autonomies in Bolivia.” 33



Jean-Paul Faguet, “Impacts and Consequences of the New Regime of Autonomies in Bolivia: Elements for a Dis-

cussion,” Inter-American Development Bank, Policy Brief no. 122 (July 2011): 34–35, http://eprints.lse.ac.uk/37513/.


10

along with eastern lowlands elites’ desires to maintain control over natural resources, has led

to physical violence.36

c. Resource distribution and control

The constitution affords departments a number of sources of revenue: revenues from royal-

ties; a portion of revenue from taxing hydrocarbons, as outlined in law; income from the sale of

goods, services, and assets by the department; departmental taxes and fees; transfers from

the General Treasury for health, education, and social assistance programs; and internal and

foreign credits and loans.37

While national revenue is distributed to departments, municipalities, and AIOCs, the State does

not take any of the revenues collected by these bodies.38 Natural resources are the property of

the State, and the national government maintains exploitation and extraction rights and in-

come from natural resources.39 Departments that produce hydrocarbons receive an 11 per-

cent royalty of their production. Hydrocarbon revenue is distributed to nonproducing depart-

ments according to law.40

In 2009, approximately 55 percent of hydrocarbon revenue, and 20 percent of revenue from

other taxes, was transferred from the national government to subnational entities. In total, the

national government transferred approximately 30 percent of its revenue to departments and

municipalities.41

Funds from resource extraction and their distribution between levels of government has been

a source of contention within Bolivia. The national government’s efforts to reduce the amount

of direct hydrocarbon tax funds that the departments receive produced a significant back-

lash.42 Departments are highly dependent on hydrocarbon revenues, which comprise approx-

imately 90 percent of departmental budgets. However, hydrocarbon revenues are shared une-

venly among the departments. Due to provisions giving hydrocarbon producers a larger por-

tion of hydrocarbon revenues, the less populated but resource-rich lowland departments have

received a greater percentage of the revenue associate with hydrocarbons.43

36

John D. Cameron, “Is this What Autonomy Looks Like? Tensions and Challenges in the Construction of Indigenous

Autonomy in Bolivia,” 2010 Meeting of the Latin American Studies Association, Toronto, Canada (2010),

http://lasa.international.pitt.edu/members/congress-papers/lasa2010/files/2631.pdf. 37

BOL. CONST., 2009, art. 341. 38

BOL. CONST., 2009, art. 340. 39

BOL. CONST., 2009, art. 349, cl. 1, 351. 40

BOL. CONST., 2009, art. 368. 41

IMF, “Bolivia: Selected Issues,” International Monetary Fund, IMF Country Report No. 10/29, 2010, 10,

http://www.imf.org/external/pubs/ft/scr/2010/cr1029.pdf. 42

ICG, Bolivia: Rescuing the New Constitution and Democratic Stability, International Crisis Group, Latin America Brief-

ing 18 (19 June 2008): 5–6. 43

IMF, “Bolivia: Selected Issues,” 9–10.


11

The Bolivian government has implemented many of the revenue distribution provisions effec-

tively, resulting in improved income distribution, cash transfer programs, and investment in

infrastructure. Between 2005 and 2011, extreme poverty in Bolivia was halved (from 48.5 to

24.3 percent). However, the eastern lowlands departments continue to maintain significantly

larger GDP than the western departments, which continues to be a source of tension.44

Assessment

Bolivia represents an interesting example of an attempt to make a formerly highly centralized

State more decentralized and responsive to the population by devolving powers, recognizing

indigenous national identities, and creating indigenous autonomous areas. A significant num-

ber of powers are either shared with the national government or exclusive to departments,

municipalities, and AIOCs. The autonomy enjoyed by many subnational units balances the

power of strong executive and legislative national structures and provides an important ave-

nue for political accommodation of opposition parties. However, due to complex legal frame-

works, the system is vulnerable to manipulation which can hinder full exercise of these powers.


Bolivia uses a mixed system—closed party list proportional representation plus two-round ma-

jority voting—to elect Plurinational Legislative Assembly members. Executives are elected via two-

round majority voting. There is an extensive system of reserved seats for members of indigenous

groups and for women. As a result, women hold 52 percent of seats in the Legislative Assembly.

a. System design

Elections in Bolivia are compulsory.45

The president is elected by a two-round majority system. The winning candidate needs either a

simple majority (more than 50 percent of the vote) or 40 percent of the vote where no other

candidate is within ten percentage points. If no candidate meets the requirements for election,

a second round is held between the two highest vote-grossing candidates.46

The Chamber of Deputies, Bolivia’s lower house, uses a mixed system to elect its 130 repre-

sentatives and alternates (who serve if the representative is no longer able to occupy the seat).

Seventy deputies are elected by simple majority (more than 50 percent of votes) from single-

member districts; 53 are elected through closed party list proportional representation (PR);

44

IMF, “IMF Executive Board Concludes 2012 Article IV Consultation with Bolivia,” International Monetary Fund (7

June 2012), http://www.imf.org/external/np/sec/pn/2012/pn1257.htm. 45

BOL. CONST., 2009, art. 26, cl. 2. 46

BOL. CONST., 2009, art. 166.


12

and seven seats reserved for indigenous peoples are elected by simple majority from single-

member districts.47 Legislation establishes the minimum number of deputy seats allocated to

each department, and the Plurinational Electoral Organ (OEP) divides seats among the de-

partments based on population.48

Senators and their alternates are directly elected from each department by closed-list PR to

the Chamber of Senators, the upper house. The constitution allocates each department four

seats, for a total of 36 senators.49

Rather unusually, judges for the high courts are elected. Members of the Supreme Court, Con-

stitutional Court, Agro-Environmental Court, and Council of Magistrates are nominated by the

Plurinational Legislative Assembly (by a two-thirds vote) and chosen through a national elec-

tion. Judges serve a six-year term and may not be reelected.50

At the subnational level, department governors are elected by simple majority. If no candidate

receives the required votes, a second round is held.51 Municipal mayors are elected by plurali-

ty.52 The 2010 subnational elections marked the first time the country held direct elections for

governors and legislators in all nine departments. Additionally, it was the first time that munici-

pal mayors were directly elected.53

Representatives of departmental, regional, and municipal assemblies are directly elected. Pro-

visions for how they are elected are specified by each department, region, or municipality, and

vary.54

b. System administration

The OEP, an overarching electoral body, is composed of the Supreme Electoral Tribunal (TSE),

departmental electoral courts, electoral judges, juries of the polling places, and electoral nota-

ries.55 The TSE organizes and administers Bolivia’s elections, the civil registry, and the electoral

47

Ley del Régimen Electoral 26 of 2010 §§56, 57, 58, 60, 61 (Bol.). In the case of a tie for any of the single-member

districts, a second round is held between the tied candidates. Party-list PR is a system in which each party presents

a list of candidates for a multimember district. The voters vote for a party, and the winning candidates are taken

from the top of the lists to fill seats according to each party’s overall share of the vote. In a ‘closed-list’ system, the

party determines candidates’ positions on the lists. 48

Ley del Régimen Electoral 26 of 2010 §§56, 57 (Bol.). 49

BOL. CONST., 2009, art. 148; and Ley del Régimen Electoral 26 of 2010 §54, cl. 1 (Bol.). 50

BOL. CONST., 2009, art. 182, 183, 188, 194, 200. 51

Ley del Régimen Electoral 26 of 2010 §64(a) (Bol.). 52

Ley del Régimen Electoral 26 of 2010 §71 (Bol.). 53

Anaid Flesken, “Bolivia’s Regional Elections 2010,” Exeter Centre for Ethno-Political Studies, University of Exeter

(UK, 2010): 4, https://www.researchgate.net/publication/258517905. 54

BOL. CONST., 2009, art. 278, 282, 284. 55

BOL. CONST., 2009, art. 205, cl. 1.


13

roll.56 Two of the TSE’s members must come from indigenous populations.57 The president se-

lects one member of the TSE, and the legislative branch elects six members. 58 At times, in-

fighting within the legislature has left the TSE understaffed, with only four of the mandated

seven members.59

c. Political parties

Indigenous organizations and citizens’ associations, along with political parties, are allowed to

propose candidates for elected public office.60 The ruling MAS party controls the presidency

and much of the national legislature.61

d. Special provisions

While indigenous autonomous areas are meant to accommodate the needs of many Bolivians,

a significant portion of Bolivia’s indigenous populations lives outside of those areas. To ensure

indigenous representation across the State, the constitution allocates reserved seats in the

legislature for indigenous populations.62 The Electoral Regime Law (2010) reserves seven seats

in the Chamber of Deputies for election from special indigenous rural districts.63 Legislation

defines the special districts of rural native indigenous populations, taking into account popula-

tion density and geographical continuity.64 Legislation also requires that members of indige-

nous groups be included in the lists of candidates for election to the Supreme Court of Justice,

Constitutional Court, Agro-Environmental Court, and Council of Magistrates, and that two out

of seven members of the TSE be of rural indigenous origin.65

Many indigenous movements were disappointed in the number of reserved seats allocated to

indigenous districts. During debate of the temporary electoral law, the lowland federation and

highland federation had proposed 34 and 24 reserved seats, respectively.66 However, the re-

served seats, combined with other electoral reforms, have led to increased representation for

many of the previously underrepresented indigenous populations. Improved indigenous politi-

56

BOL. CONST., 2009, art. 208, cl. 1(3). 57

BOL. CONST., 2009, art. 206, cl. 2. 58

BOL. CONST., 2009, art. 206, cl. 3. 59

FM Bolivia, “Asamblea designa vocales y completa el Tribunal Electoral,” FM Bolivia (15 September 2011),

http://www.fmbolivia.tv/asamblea-designa-vocales-y-completa-el-tribunal-electoral/. 60

BOL. CONST., 2009, art. 209. 61

Nick Miroff, “Evo Morales, Bolivia’s Powerful Incumbent, Plays Politics at High Altitude,” Washington Post (6 October

2014), https://www.washingtonpost.com/world/evo-morales-bolivias-powerful-incumbent-plays-politics-at-high-

altitude/2014/10/05/f7c8d330-7f04-427b-9fb4-2157378dbecd_story.html. 62

Antonio Espinoza and Stephen Garvey, “Electoral Fairness Research,” The Foundation for Democratic Advance-

ment (2011), http://democracychange.com/Bolivia%20research.pdf. 63

Ley del Régimen Electoral 26 of 2010 §50, cl. 1(e) (Bol.). 64

BOL. CONST., 2009, art. 146. 65

Ley del Régimen Electoral 26 of 2010 §79 (Bol.); and Ley del Órgano Electoral Plurinacional 18 of 2010 §12 (Bol.). 66

Htun and Ossa, “Political Inclusion of Marginalized Groups,” 16.

http://democracychange.com/Bolivia%20research.pdf


14

cal power has helped resolve and de-escalate social conflicts related to indigenous rights, but it

has also generated a new set of political conflicts with political and economic elites. The new

electoral structure has led to political dominance of certain indigenous groups at the national

level, often pushing conflicts to the departmental level where tensions persist between the na-

tional government and local opposition groups.67

The constitution states that gender equality in participation is one of the State’s core values.68

Electoral law establishes an ‘alternate parity’ system for elections, where party lists for legisla-

tive representatives at all levels must alternate between men and women, and for single-

member districts, the primary candidate must be a woman in at least 50 percent of districts.

Additionally, each candidate’s substitute must be the opposite gender of the candidate.69

Legislation also requires that 50 percent of

candidates for election to the Supreme

Court of Justice, Constitutional Court, Agro-

Environmental Court, and Council of Magis-

trates, and three out of seven members of

the TSE, be women70 The Political Party Law

(1999) requires that all political parties have

at least 30 percent women at all decision-

making levels within the party.71

As a result of these quotas, in the 2014 elec-

tions, women won 47 percent of seats in the

Chamber of Senators and 53 percent of

seats in the Chamber of Deputies (for 52

percent of seats in the combined Legislative Assembly). This puts Bolivia second in the world

for women’s representation in a lower or single house of parliament.72

However, issues with implementation still exist. Criminalization of political assault was included

in the electoral law after repeated reports of harassment of women elected officials to pres-

sure them to resign.73 In a 2015 interview discussing departmental and municipal elections, the

president of the TSE, Wilma Velasco, expressed concern about a practice that reduced wom-

67

Jonas Wolff, Challenges to Democracy Promotion: The Case of Bolivia (Washington DC: Carnegie Endowment for In-

ternational Peace, March 2011): 6–7. 68

BOL. CONST., 2009, art. 8, cl. 2. 69

Ley del Régimen Electoral 26 of 2010 §§11, 54, cl. 2, 58, cl. 2 (Bol.). 70

Ley del Régimen Electoral 26 of 2010 §79 (Bol.); and Ley del Órgano Electoral Plurinacional 18 of 2010 §12 (Bol.). 71

Ley de Partidos Políticos 1983 of 1999 §§19(4) (Bol.). 72

IPU, “Women in national parliaments” (Inter-Parliamentary Union, 1 September 2016), http://www.ipu.org/wmn-

e/classif.htm. 73


Prospect for Political Accommodation:

Gender Parity Quotas

The Electoral Regime Law (2010) requires that par-

ty lists alternate between men and women. The

2009 constitution establishes an ‘alternate parity”

system, stating that for single-member districts,

each representative must have an alternate who

takes over his or her duties if that person is unable

to occupy the seat. The alternate must be the op-

posite gender of the candidate. These mechanisms

apply to indigenous representatives as well and try

to ensure equal representation of men and women

in legislative bodies.


15

en’s representation. Following a woman candidate’s disqualification from running, the slot

would never be filled with another woman candidate as required, so that if the party won the

seat, the male alternate would have to fill it.74 And while the 2014 elections resulted in high

numbers of women in the Plurinational Legislative Assembly, observers of the 2009 elections

suggested that the OEP’s failure to implement transitional electoral provisions resulted in party

lists that did not exhibit gender parity.75 While the quota for women’s representation also ap-

plies to indigenous districts, the observers noted that women candidates were ‘almost invisi-

ble” on party lists, with local traditions and practice taking precedence over women’s represen-

tation.76

Assessment

Proportional representation (PR), used to elect some of Bolivia’s legislators, is generally consid-

ered to be accommodating as it aims to produce representative bodies. While majority voting

is generally considered to be less accommodating than PR, Bolivia uses a two-round voting sys-

tem rather than a plurality system to fill its single-member districts. This mixed system, com-

bined with quotas for indigenous and women’s representation and compulsory voting, has led

to reasonably inclusive and representative bodies. Additionally, the fact that subnational exec-

utives and legislative members are now elected provides an element of direct accountability

between officials and constituents that did not previously exist.

Despite certain obstacles to women’s effective participation, significant reserved seats for

women at all levels have improved representation and inclusion in decision making and started

to transform political dynamics. Reserved seats for indigenous groups, combined with effective

competition for multi- and single-member districts, have also increased indigenous represen-

tation, although the reserved seats are not as robust as they are for women.

74

Luis Maella, “Wilma Velasco: Las sustituciones de los candidatos afectarían la representación de las mujeres,” La

Razón (27 March 2015), http://www.la-razon.com/nacional/animal_electoral/Subnacionales-Wilma_Velasco-

sustituciones-candidatos-representacion-mujeres_0_2241975838.html. 75

The Carter Center, “Analysis of the Electoral Legal Framework,” Observation Mission of the Bolivia Voter Registra-

tion: The Final Report (The Carter Center, 2009): 11,

http://www.cartercenter.org/resources/pdfs/news/peace_publications/election_reports/FinalReportBoliviaVoterRegis

tration2009.pdf. 76

The Carter Center, “Electoral Legal Framework,” 12.


16

3. EXECUTIVE BRANCH

The president heads the executive branch, supported by a vice president and council of minis-

ters. Due to ruling party control of both the executive and legislature, the legislature does not

serve as a strong check on executive action. There are no formal mechanisms for ensuring inclu-

sivity, so it falls to the president to ensure broad representation and inclusion in the executive.

Elected governors head departments, and mayors head municipalities.

a. Structure and competencies

The executive branch (also executive organ) is composed of the president, vice president, and

council of ministers.77 The president and vice president serve five-year terms, and according to

legal frameworks, they may be reelected once for a continuous term.78 However, in November

2017 the Constitutional Court struck down those term limits as unconstitutional.79

The president is the head of State and commander of the Armed Forces, and as such is re-

sponsible for proposing and directing national government policy. He or she also has jurisdic-

tion over foreign policy. The executive organ may initiate legislation and is responsible for en-

acting legislation once it is passed.80 The president may also return a bill to the Legislative As-

sembly with comments, which the Legislative Assembly can consider or not.81 The president

can declare a state of emergency and may issue supreme decrees and resolutions. He or she

administers State revenues and presents a budget and an economic and social development

plan to the legislature. The president may propose laws that are economically urgent that will

receive priority attention in the legislature.82 Ministers, appointed by the president, propose

policies and implement the general policies of the government. Ministers may propose su-

preme decrees for the president to sign.83

Executive power has steadily increased since President Morales and the MAS came to power.

Since the Supreme Electoral Tribunal is chosen by the President and the MAS-controlled

Plurinational Legislative Assembly, the body responsible for ensuring free and fair elections

risks representing the interests of those already in power.84 President Morales has repeatedly

tested the term limit provisions in the 2009 constitution. The Constitutional Court ruled that

77

BOL. CONST., 2009, art. 166. 78

BOL. CONST., 2009, art. 168. 79

Tribunal Constitucional Plurinacional [TCP] [Plurinational Constitutional Court], Sentencia Constitucional

Plurinacional 0084/2017 (Bol.). 80

BOL. CONST., 2009, art. 162, 163(8). 81

BOL. CONST., 2009, art. 163, cl. 10–11. 82

BOL. CONST., 2009, art. 172. 83

BOL. CONST., 2009, art. 175. 84

Julio Mendez Cabrera, “Bolivia’s Perennial President,” Harvard Political Review (8 October 2014),

http://harvardpolitics.com/world/bolivias-perennial-president/.


17

President Morales could run in the 2014 election since his first term had occurred under the

previous constitution and he had served only one term under the 2009 constitution.85 In Octo-

ber 2014, President Morales was reelected for a third term, receiving 60 percent of the vote.86

The Legislative Assembly attempted to amend the constitution to allow President Morales to

run for a fourth term in 2019.87 While voters rejected that amendment in a 2016 referendum,88

in November 2017 the Constitutional Court declared most term limits in the constitution un-

constitutional, including for the president.89

Governors head the executive in departments.90 Each department specifies the governor’s ex-

act competencies in its autonomous statute.91 Mayors head the executive at the municipal lev-

el. Their competencies are detailed in their municipal charters.92

b. Checks on the executive

The president is required to submit an annual report on the state of public administration to

the Legislative Assembly.93 The legislature has the power to question and censure Ministers of

State and can investigate executive bodies as part of its supervisory powers.94 The legislature

may also override presidential vetoes with an absolute majority of members present and au-

thorize a trial of the president or vice president.95

Because President Morales’s MAS party controls both the executive and the legislative branch,

the legislature does not serve as a strong check on executive action. MAS’s supermajority con-

trol of the legislature has often allowed it to consolidate power, most notably in its attempts to

amend the constitution to allow President Morales to run for more than two terms.96

85

Clare Ribando Seelke, Bolivia: In Brief (Washington, DC: Congressional Research Service, 17 April 2014): 5,

https://www.fas.org/sgp/crs/row/R43473.pdf. 86

AP, “Bolivia Elects Evo Morales as President for Third Term” (Associated Press, 13 October 2014),

http://www.theguardian.com/world/2014/oct/13/bolivia-evo-morales--president-third-term. Associated Press 87

Daniel Zovatto, “Slaves of the People or the Institutions,” Institute for Democracy and Electoral Assistance (1 October

2015), http://www.idea.int/americas/slaves-of-the-people-or-the-institutions.cfm. 88

Jonathan Watts, “Bolivia President Blames ‘Conspiracy’ for Loss—But Weary Voters May Be to Blame,” The Guardi-

an (24 February 2016), http://www.theguardian.com/world/2016/feb/24/bolivia-evo-morales-referendum-vote-

defeat. 89

Other term limits affected include for national assembly members, governors, departmental assembly members,

mayors, and members of municipal councils. TCP, Sentencia Constitucional Plurinacional 0084/2017. 90

BOL. CONST., 2009, art. 279. 91

Framework Law of Autonomies and Decentralization Act 31 of 2010 §30, cl. 2 (Bol.). 92

Framework Law of Autonomies and Decentralization Act 31 of 2010 §34, cl. 2 (Bol.). 93

BOL. CONST., 2009, art. 172(12). 94

BOL. CONST., 2009, art. 158, cl. 1, para. 18, 19. 95

BOL. CONST., 2009, art. 163, cl. 11 and art. 161, cl. 1, para. 7. 96

BBC, “Vote May Allow Bolivian President to Seek Re-election,” BBC News (27 September 2015),

http://www.bbc.com/news/world-latin-america-34372038.


18

Voters can recall elected members of the executive through a referendum.97 (See Public partic-

ipation—Referendums.) In 2008, President Morales and a number of governors were subject to

recall referendums. Morales and all but two governors won the referendums.98

c. Inclusivity

In appointing ministers, the president must respect “the Pluri-National character of the country

and gender equity.”99 In 2010, President Morales appointed equal numbers of women and

men to his cabinet of 20 ministers.100 However, as of November 2015, six of 21 ministers (29

percent) were women.101

While not due to any formal mechanism for inclusivity within the executive, President Morales

is the first president of Bolivia from an indigenous background.102

Assessment

Bolivia’s strong powers of the presidency, combined with the MAS party’s control of both the

executive and the legislative branches, mean the legislature does not serve as a strong check

on executive action. The president’s authority to designate legislation as an economic priority

grants the executive branch further control over the priorities of the legislature and the issues

it addresses.

The current president has largely ensured broad representation and inclusion in the cabinet;

however, there are no formal mechanisms for ensuring inclusivity within the executive, so this

relies on the good will of the president.


The Bolivian legislature is composed of a bicameral legislative assembly—the Chamber of Depu-

ties (the lower house) and the Chamber of Senators (the upper house). Many legislative respon-

sibilities are shared between the two chambers. Citizens, members of the assembly, the execu-

tive, the Supreme Court, and autonomous subnational governments may propose legislation.

97

BOL. CONST., 2009, art. 240, cl. 3. 98

Wolff, “Towards Post-Liberal Democracy,” 43. 99

BOL. CONST., 2009, art. 172, cl. 22. 100

Franz Chávez, “BOLIVIA: Unprecedented Gender Parity in Cabinet,” Inter Press Service News Agency (27 January

2010), http://www.ipsnews.net/2010/01/bolivia-unprecedented-gender-parity-in-cabinet/. 101

WITW Staff, “Bolivian President Calls Health Minister a Lesbian for Talking to Another Woman,” Women in the

World Media (19 November 2015), http://nytlive.nytimes.com/womenintheworld/2015/11/19/bolivian-president-

calls-health-minister-a-lesbian-for-talking-to-another-woman/. 102

BBC, “Profile: Bolivia's President Evo Morales,” BBC News (22 February 2016), http://www.bbc.com/news/world-

latin-america-12166905.


19


Bolivia has a bicameral legislature, the Plurinational Legislative Assembly, composed of the

Chamber of Deputies (the lower house) and the Chamber of Senators (the upper house). The

assembly as a whole has the authority to approve laws that govern the entire Bolivian State.103

The Chamber of Deputies is composed of 130 members. The Chamber of Senators is com-

posed of 36 members. The vice president heads the Plurinational Legislative Assembly. Mem-

bers of both chambers serve five-year terms and according to the constitution can serve two

consecutive terms, although those term limits were ruled unconstitutional in November 2017

by the Constitutional Court.104 Many responsibilities are shared between the two chambers,

such as approval of the budget, approving new territorial units, overseeing state organs, na-

tional-level taxation, and authorizing military force. The Chamber of Deputies is responsible for

legislation on the budget, economic and social development plans, the Armed Forces, and

oversight of the higher courts, among others. The Chamber of Senators’ competencies include

trying members of the higher courts and approving nominations of military leaders, executive

ministers, and ambassadors. Table 3 lays out the competencies the two chambers share and

those they possess individually.

Table 3—Select Legislative Competencies

PLURINATIONAL LEGISLATIVE

ASSEMBLY (BOTH CHAMBERS)†

CHAMBER OF DEPUTIES‡ CHAMBER OF SENATORS

§

Approval and execution of the budget

Electing the electoral organ

Nomination of candidates to the

Constitutional Court, Supreme Court,

Agro-Environmental Court, and

Council of Magistrates

Approval of the creation of new

territorial units

Ratification of international treaties

Establishment of monetary system

Oversight of state organs

Creation and modification of taxes at

the national level

Authorization of military forces

Legislation on the budget,

economic and social

development plans, public credit

and subsidies, and the Armed

Forces

Oversight of the Constitutional

Court, the Supreme Court, and

the Administrative Control of

Justice

Trying members of the

Constitutional Court, the

Supreme Court, the Agro-

Environmental Court, and the

Central Administration of

Justice if they commit crimes

against their functions

Approval of nominations of

military leaders, executive

ministers, and ambassadors

† Bol. Const., 2009, art. 158.

‡ Bol. Const., 2009, art. 159.

§ Bol. Const., 2009, art. 160.

103

BOL. CONST., 2009, art. 145. 104

BOL. CONST., 2009, art. 156; TCP, Sentencia Constitucional Plurinacional 0084/2017.


20

Legislative authority at the subnational level is vested in departmental assemblies, regional as-

semblies, and municipal councils.105 Autonomous statutes outline the competencies and com-

position of departmental and municipal legislatures.106 Members of the assemblies and coun-

cils serve five-year terms, and as of the November 2017 Constitutional Court ruling there are

no term limits for these positions.107

b. Decision-making rules and procedures

Legislation may be proposed by citizens, members of the Plurinational Legislative Assembly,

the executive organ, the Supreme Court (on issues related to justice), and autonomous gov-

ernments of the territorial entities. The Plurinational Legislative Assembly is responsible for

processing all proposed legislation. The rules for processing legislation are outlined in the rules

of each legislative chamber.108

Legislation regarding decentralization, autonomies, and land regulations must be introduced in

the Chamber of Senators, along with legislation proposed by a senator. All other legislation is

introduced in the Chamber of Deputies. Legislation must be approved by both chambers, after

which it is sent to the president to be enacted.109

Despite constitutional provisions calling for laws defining political organizations and public par-

ticipation, as of September 2016 these laws have not been passed.

c. Checks on the legislature

There are fewer checks on the legislature than on the executive. The legislative branch relies

on the executive to implement its legislation,110 and the executive proposes the budget to the

legislature.111 The executive also has power to propose ‘laws of economic urgency’, to which

the legislature must give priority consideration.112

Assessment

Due to reserved seats for women and indigenous peoples, as well as partial use of proportion-

al representation to elect deputies, the legislature is broadly representative of diverse inter-

ests. However, its authority is constrained by the power of the executive and the influence of

the ruling party.

105

BOL. CONST., 2009, art. 277, 281, 283. 106

BOL. CONST., 2009, art. 278, 282, 284. 107

BOL. CONST., 2009, art. 288; TCP, Sentencia Constitucional Plurinacional 0084/2017. 108

BOL. CONST., 2009, art. 162. 109

BOL. CONST., 2009, art. 163. 110

BOL. CONST., 2009, art. 172, cl. 7. 111

BOL. CONST., 2009, art. 172, cl. 11. 112

BOL. CONST., 2009, art. 172, cl. 24.


21

The fact that subnational entities and individuals may propose legislation that must be pro-

cessed creates additional avenues for public participation and accommodation of subnational

interests.


The constitution guarantees a number of avenues for public participation, including elevating

civil society to an official public monitor role. Through referendums, the public can recall elected

officials and has a say in constitutional amendments, establishing autonomous areas, and in-

ternational treaties.

a. Engagement with the executive

The constitution mandates public participation in political affairs and public policy through or-

ganized civil society. Civil society is tasked with monitoring public management at all levels of

government.113 This includes supporting government policy formulation, coordinating joint

planning with and monitoring of the State, supporting candidate transparency, and filing com-

plaints for investigation.114 The constitution also mandates public participation in the determi-

nation of expenses and public investments.115 Through informal channels, popular organiza-

tions have organized protests that have been effective at holding the Morales government ac-

countable for certain issues.116

b. Production of legislation

Citizens may propose legislation to the Plurinational Legislative Assembly.117 Civil society is

tasked with helping design public policy and supporting the Legislative Assembly in developing

legislation.118

While the constitutional reforms enable the public’s and civil society’s greater participation in

politics, broad participation has not been fully realized. Many of the constitution’s participation

provisions are not detailed in legislation. The MAS government has mobilized civil society sup-

port to overcome political opposition, has privileged certain organizations close to it to the ex-

113

BOL. CONST., 2009, art. 241. 114

BOL. CONST., 2009, art. 242, cl. 1, cl. 7–8. 115

BOL. CONST., 2009, art. 321, cl. 2. 116

Wolff, “Towards Post-Liberal Democracy,” 45–46. 117

BOL. CONST., 2009, art. 162. 118

BOL. CONST., 2009, arts. 241, cl. 1, 242, cl. 1, 2.


22

clusion of others, and has attempted to steer participation from above rather than the bottom-

up processes envisioned in the constitution.119

c. Local-level decision making

At the local level, civil society can play an oversight role for government institutions.120

d. Referendums

The public has the ability to recall any elected official except judges through referendums.121

Public referendums are required for constitutional amendments,122 the establishment of de-

partmental, regional, municipal, or rural indigenous autonomies,123 and ratification of certain

international treaties. The public must approve through a referendum any international trea-

ties addressing borders, monetary or economic integration, or granting institutional authority

to international organizations.124 Additionally, treaties are subject to a referendum if 5 percent

of the people request a referendum or if 35 percent of Plurinational Legislative Assembly

members request a referendum.125

Through a referendum, the public rejected a constitutional amendment allowing President Mo-

rales to run for a third term under the current constitution (fourth term in total).126 However in

November 2017, the Constitutional Court ruled presidential (and other) term limits were un-

constitutional, making the referendum results irrelevant.127

Assessment

While the constitution lists a number of avenues for public participation, the fact that these are

not further detailed in legislation hinders people’s ability to use them. Some of the most suc-

cessful forms of participation—protests—are not part of formal mechanisms, and thus might

not be as effective with a different government in power.

The constitution calls for a new law establishing a stronger framework for public monitoring

and public engagement in governance. The most recent public participation legislation is the

119

Schilling-Vacaflor, “Bolivia’s New Constitution,” 14–15. 120

BOL. CONST., 2009, art. 242, cl. 3. 121

BOL. CONST., 2009, art. 240, cl. 3. This must be initiated by at least 15 percent of that official’s voting constituents. 122

BOL. CONST., 2009, art. 411(12). 123

BOL. CONST., 2009, art. 274, 294, cl. 2. 124

BOL. CONST., 2009, art. 257, cl. 2. 125

BOL. CONST., 2009, art. 259, cl. 1. 126

Nicholas Casey, “Bolivian President Concedes Defeat in Term-Limit Referendum,” New York Times (24 February

2016), http://www.nytimes.com/2016/02/25/world/americas/bolivian-president-evo-morales-concedes-defeat-in-

term-limit-referendum.html. 127

TCP, Sentencia Constitucional Plurinacional 0084/2017.


23

1994 Law of Popular Participation (LPP).128 However, as of September 2016, no law regarding

public participation had been passed since the new constitution came into force.

Referendums create an avenue for public influence over the legislature and executive, and

they have the capacity to alter the political structure through the creation of autonomous de-

partments. However, the growing power of the executive combined with the lack of legislation

on public participation hinders the public’s ability to fully make use of these options.


The constitution recognizes an expansive set of indigenous rights. Indigenous populations are

guaranteed representation in legislative and judicial structures, and may set up their own judi-

cial systems. Provisions on territorial autonomy give indigenous groups the ability to govern their

own communities.

a. Executive roles and interactions

The constitution mandates that ministers respect the “Pluri-National character of the coun-

try.”129 It also recognizes all 36 languages of the rural native indigenous peoples as official lan-

guages.130

The concentration of power within the executive during President Morales’s administrations

has limited the ability of indigenous communities to engage in substantive policy making. Some

community leaders have criticized the Morales administration’s control over policy making and

contend that the administration is not representing the interests of their communities.131

b. Legislative roles and interactions

The constitution guarantees indigenous representation in legislative structures.132 (See Systems

of Election and Selection—Special provisions.) Indigenous rural districts can choose their own

method to elect candidates, and the electoral organ is tasked with ensuring native indigenous

norms and procedures are respected in the elections.133 However, many indigenous groups

have criticized the reservations—seven seats in the Chamber of Deputies—as not nearly

enough to guarantee representation of the diversity of indigenous groups.134 Others have not-

128

BOL. CONST., 2009, art. 241. 129

BOL. CONST., 2009, art. 241. 130

BOL. CONST., 2009, art. 5. 131

Nancy Postero, “Morales’s MAS Government: Building Indigenous Popular Hegemony in Bolivia,” Latin American

Perspectives 37, no. 3 (May 2010): 27. 132

BOL. CONST., 2009, art. 147, cl. 2. 133

BOL. CONST., 2009, art. 211, cl. 1, cl. 2. 134

Htun and Ossa, “Political Inclusion of Marginalized Groups,” 15–16.


24

ed that candidate selection has not occurred according to indigenous norms and procedures

but rather been a process of negotiation that has allowed MAS to exert undue influence on the

selection.135 The constitution also grants indigenous peoples the right to be consulted when-

ever legislative or administrative measures may affect them.136

c. Judicial activities

Each indigenous nation may set up its own courts, which can receive support from the Bolivian

State and are granted equal status with other state courts, so public officials must respect and

follow the rulings of those courts.137 Indigenous courts must, however, respect the constitu-

tional rights outlined in Bolivia’s constitution.138 Legislation also requires that members of in-

digenous groups be included in the lists of candidates for election to the Supreme Court of

Justice, Constitutional Court, Agro-Environmental Court, and Council of Magistrates.139 (See Sys-

tems of Election and Selection—Special provisions.)

d. Territorial autonomy

The constitution details the political rights of the country’s indigenous groups. They have the

right of self-determination, and they may administer their own systems of government within

an autonomous indigenous territory. (See Political Structure—Division of powers.) This allows the

indigenous community the exclusive use and exploitation of renewable natural resources ex-

isting in their territory and the ability to create and administer their own system of govern-

ance.140 Indigenous communities also have the right to maintain isolation from other commu-

nities.141 This recognition of indigenous populations and the ability for rural native indigenous

populations to set up and maintain their own autonomous subnational entities has given un-

precedented rights to previously unrecognized populations.

However, the promise of autonomy has yet to be realized in many areas. While indigenous

rights and autonomy have been a pillar of the governing MAS party’s message, in reality MAS

has actively opposed the establishment of many autonomous indigenous governing structures.

In elections in 11 municipalities in 2009, MAS fielded its own candidates in local elections to try

to prevent pro-autonomy candidates from achieving power in municipalities.142 Implementa-

tion of these reforms has also been uneven across the country. Some lowland communities

135

Tockman, “Decentralisation,” 4–5. 136

BOL. CONST., 2009, art. 30, cl. 2. 137

BOL. CONST., 2009, art. 179, cl. 1-2, 191, cl. 1, 192, cl. 1-3. 138

BOL. CONST., 2009, art. 190, cl. 2. 139

Ley del Régimen Electoral 26 of 2010 §79 (Bol.) and Ley del Órgano Electoral Plurinacional 18 of 2010 §12 (Bol.). 140

BOL. CONST., 2009, art. 30. 141

BOL. CONST., 2009, art. 31. 142



25

have limited knowledge of new structures and institutions, and this limits the impact these re-

forms can have at addressing the interests of those communities.143

There are also tensions between traditional indigenous governance practices and the rights of

women and minorities within those communities. While indigenous communities in Bolivia are

diverse and not monolithic, some indigenous communities follow decision-making procedures

that, in striving to reach consensus, often exclude opposing views and have been characterized

as authoritarian and sexist.144

Assessment

Bolivia’s explicit recognition of many indigenous rights and practices, reserved seats for indige-

nous members of the Legislative Assembly, and options for creating indigenous autonomies

represent a comprehensive attempt to accommodate indigenous groups that were marginal-

ized and excluded from political processes for many years. As a result, indigenous representa-

tion and participation has significantly increased. Bolivia has many examples of indigenous

norms and practices fused with State structures, which has led some to call for greater auton-

omy. The strong presidency, combined with the power of the MAS party, has meant that, de-

spite constitutional protections, the State has often been able to exert control over the exer-

cise of indigenous rights.

How accommodating these structures are is affected by the reality that traditional methods of

decision making and justice in Bolivia can sometimes exclude women’s and minority groups’

rights.

Conclusion

Bolivia’s constitution seeks to transform the structure of the State in an attempt to accommo-

date its sizeable indigenous populations that historically were marginalized. It provides a num-

ber of examples of political accommodation, including recognition of multiple national identi-

ties within the State, devolution of significant powers to subnational entities, reserved seats for

indigenous populations and women, multiple avenues for public participation, and territorial

autonomy provisions so indigenous groups can govern their own communities.

Bolivia’s governance arrangements have contributed to greater representation, participation,

and economic inclusion. However, many mechanisms have not been defined or fully imple-

mented yet, and this has led to confusion of roles and increased tensions, and has left legisla-

tion open to manipulation. Since these reforms are still young, it remains to be seen what

143

Victoria Reyes-Garcia et al., “The Uneven Reach of Decentralization: A Case Study among Indigenous Peoples in

the Bolivian Amazon,” International Political Science Review 31, no. 2 (2010), 229–243. 144

Schilling-Vacaflor, “Bolivia’s New Constitution,” 17.


26

many of the arrangements’ true effects on decentralization, representation, public participa-

tion, and respect for indigenous rights will be.

References

Legal References

BOL. CONST., 2009.

Framework Law of Autonomies and Decentralization Act 31 of 2010 (Bol.).

Law on State Budgets Act 62 of 2010 (Bol.).

Ley de Partidos Politicos 1983 of 1999 (Bol.).

Ley del Régimen Electoral 26 of 2010 (Bol.).

Tribunal Constitucional Plurinacional [TCP] [Plurinational Constitutional Court], Sentencia Constitucional

Plurinacional 0084/2017 (Bol.).

Nonlegal References

Albó, Xavier, and Carlos Romero. Autonomías Indígenas en la Realidad Boliviana y su Nueva Constitución. La

Paz: Vicepresidencia del Estado Plurinacional de Bolivia, 2009.

Andean Information Network. “Indigenous Autonomies in Bolivia; Part I: Legal Guidelines and Gaps.” 3

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Canada, 2010. http://lasa.international.pitt.edu/members/congress-papers/lasa2010/files/2631.pdf.

Carter Center, The. “Analysis of the Electoral Legal Framework.” Observation Mission of the Bolivia Voter

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news/peace_publications/election_reports/FinalReportBoliviaVoterRegistration2009.pdf.

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HOW GOVERNANCE FUNCTIONS | BOTSWANA

29

BOTSWANA

Executive Summary

This case study focuses on Botswana’s governance arrangements analyzed through the lens of









In some respects, Botswana’s governance structures are not particularly accommodating. It

has a centralized governance structure, and local governance institutions have limited authori-

ty and financial resources. The first-past-the-post (FPTP) electoral model for legislative elec-

tions, coupled with a powerful executive structure, have contributed to the Botswana Demo-

cratic Party’s dominant role in national government since independence.

Nonetheless, the political system has been stable, and international analysts highlight Botswa-

na as an example of good governance in Africa.145 While Botswana’s small population and pro-

ductive economy contribute to the country’s stability, there are also mechanisms within the

political system that promote good governance through the inclusion of various interests. Spe-

cifically, the integration of traditional and customary arrangements into the political system—

such as the Ntlo ya Dikgosi (House of Chiefs) in the national legislature—and opportunities for

public participation through kgotlas, or traditional local-level forums, promote political accom-

modation.

145

Since 2000, the Ibrahim Index of African Governance has ranked Botswana as one of the top five countries in

mainland Africa in terms of quality of governance, and Transparency International’s annual “Corruption Perceptions

Index” regularly has ranked Botswana as the country with the lowest levels of perceived corruption in Sub-Saharan

Africa. See Mo Ibrahim Foundation, “2015 Ibrahim Index of African Governance” (2015)

http://mo.ibrahim.foundation/iiag and Transparency International, “Corruption Perceptions Index,”

http://www.transparency.org/research/cpi.


30

Table 4—Accommodating and Less Accommodating Aspects in Botswana


BOTSWANA

Integration of traditional leaders into national

upper house

Mechanisms for public participation†




Poor accommodation of women, minority

tribes, opposition

† However, this is mostly through kgotlas, traditional local-level forums, which tend not to be welcoming to wom-

en and minority tribes.

Background

Botswana is a former British colony in southern Africa with a population of approximately two

million; its population is one of the smallest countries on the continent.146 Upon independence

in 1966, it was one of the poorest countries in the region. Since then, it has emerged as one of

the most politically stable and economically prosperous countries in Africa. While Botswana

has not experienced large-scale violent conflict during its time as an independent State, there

are tensions between the officially recognized Tswana tribes and its many minority tribes.147

Botswana has consistently held multiparty elections, although the Botswana Democratic Party

has regularly won elections at the national level. Botswana has had one of the highest rates of

per capita growth in the world, largely fueled by diamond exports.148

Political institutions and governance in Botswana have evolved since the country’s independ-

ence through court rulings, constitutional amendments, and national referendums. Overall,

political institutions have channeled and addressed issues facing the country successfully,

demonstrated by the absence of significant political or ethnic violence.

146

The World Bank, “World Bank Open Data Project: Population, total, Botswana,”

http://data.worldbank.org/indicator/SP.POP.TOTL?locations=BW&view=map. 147

Uppsala Conflict Data Program, “Botswana: Number of Deaths,” http://ucdp.uu.se/#country/571; Lydia Nyati-

Ramahobo “Minority Tribes in Botswana: The Politics of Recognition,” Minority Rights Group International (2008): 1. 148

Stephanie Hanson, “Botswana: An African Success Story Shows Strains,” Council on Foreign Relations Backgrounder

(10 January 2008), http://www.cfr.org/botswana/botswana-african-success-story-shows-strains/p15108.


31













3. Executive branch






the Strands.


Botswana has used specific mechanisms that promote accommodation of different interests.



Botswana is a unitary state with a strong central government. While local governance institutions

increase opportunities for representation, limited decentralization has not significantly en-

hanced opportunities for political accommodation. However, Botswana’s small population

means that decentralization may not be necessary for accommodation, as the people are al-

ready close to the government.

149

Here, ‘representatives’ is used broadly to mean political, community and traditional leaders who represent, or



32

a. Structure

Botswana is a unitary state that does not provide for

decentralization in the constitution. There is, howev-

er, limited decentralization through several pieces of

legislation that create a framework for local govern-

ance. The Local Government Act and the Townships

Act establish district councils in each district150 and

urban councils in five towns and cities.151 The Tribal

Land Act152 and Bogosi Act153 are the basis for land

boards and tribal administrations in each tribal area.

(See Traditional and Customary Arrangements.) These

pieces of legislation, taken together, form the four

pillars of local government in Botswana: 1) councils; 2) district administration; 3) land boards;

and 4) tribal administration.154

At the national level, Botswana is governed by a head of state and government (whose title is

president but whose responsibilities are similar to a prime minister), and a bicameral legisla-

ture. The legislature is composed of the National Assembly, which holds legislative power, and

the House of Chiefs, which advises on tribal affairs.

The establishment of elected subnational government institutions has increased representa-

tion at the local level. For instance, opposition parties have never succeeded in obtaining a ma-

jority in the National Assembly but have held majorities in several urban councils.155 The estab-

lishment of tribal administrations, including formal recognition of tribal communities and tradi-

tional leadership, has also increased local representation.

Land boards enable local administration of tribal lands, in theory bringing government institu-

tions and governance decisions closer to communities. Yet, as land boards have played an in-

creasing management role, the role of tribal chiefs has diminished. Land boards have come

under criticism for lacking local political accountability, particularly because they act inde-

150

Local Government (District Council) Act, 1965, arts. 4, 59. 151

Townships Act of 1965. 152

Tribal Land Act of 1970. 153

Bogosi Act of 2008. 154

Keshav C. Sharma, “Role of Traditional Structures in Local Governance for Local Development: The Case of Bot-

swana,” Community Empowerment and Social Inclusion Program, World Bank Institute (2004): 19. 155

Kempe Ronald Hope, Sr., “Decentralisation and Local Governance Theory and the Practice in Botswana,” Devel-

opment Southern Africa 17, no. 4 (2000): 527.


Land Boards and Tribal Administrations

Botswana recognizes traditional govern-

ance structures on the local level through

two primary institutions: land boards and

tribal administrations. Land boards serve

to administer communal tribal lands, while

tribal administra-tions grant formal

recognition to the rule of traditional chiefs.


33

pendently of the district councils and tribal administrations.156 This criticism of land boards

demonstrates that interactions between branches of local government could be strengthened.

While the four local governance institutions are not particularly integrated, they all fall under

the Ministry of Local Government. The Ministry of Local Government is part of the national ex-

ecutive, and the Ministry’s mandate includes oversight and support of local government admin-

istration and social service provision.157 The minister of local government holds significant au-

thority over the composition and operations of local government institutions.

Figure 5—Botswana’s Political Structure


Competencies in Botswana are centralized in the national government. District councils have

been delegated authority in five main competency areas through legislation: primary educa-

tion; health and sanitation; road construction and maintenance; water supply; and social and

community development.158 This is a very limited form of decentralization, which is not en-

trenched in the constitution and delegates the administrative and implementation aspects of

service provision rather than the policy development or curriculum development aspects. Ad-

156

Richard White, “Tribal Land Administration in Botswana,” Institute for Poverty, Land and Agrarian Studies (2009): 4–5. 157

Ministry of Local Government, “Mandate,” Republic of Botswana, http://www.gov.bw/en/Ministries--

Authorities/Ministries/Ministry-of-Local-Government-MLG1/About-MLG/Mandate/. 158

Local Government (District Council) Act, 1965, arts. 31, 33, First Schedule.

Na onalexecu ve

Na onallegisla vebranch

Public

HouseofChiefs Na onalAssembly

Tradi onalbodies

Regionalelectoralcolleges

Elects

Elect

Elect

PresidentAppoints

Appoints

Cabinet


34

ditionally, the Local Government Act specifies that a number of these competencies are only

delegated to district councils when they are not undertaken by another authority or govern-

ment institution.159 These provisions have enabled the national government to recentralize

certain services, including healthcare and water supply, as well as management of civil service

personnel.160 The dominance of the national government is reinforced by the fact that the min-

ister of local government must approve district council laws, and the president can amend or

suspend them.161

Traditional tribal administrations headed by chiefs have limited formal competencies over trib-

al areas.162 (See Traditional and Customary Arrangements.) The minister of local government

must recognize the appointment of chiefs and has the power to remove them, withdraw

recognition, or give them instructions with which they must comply.163 That recognition of

chiefs lies with the government rather than the tribes has generated criticism, and there have

been cases of disagreements between the government and tribes over individual chiefs.164


The national government controls most revenue streams in Botswana, largely through its role

in the diamond sector. The national government has managed diamond revenues centrally

since independence, and the government established its own diamond trading company in

September 2013.165 Diamonds accounted for more than 80 percent of total export earnings

that year.166

As a result of its control of these revenue streams, the national government maintains control

over all decisions about budgets and government expenditures. This is reinforced by the fact

that local government institutions have limited or no authority to raise revenue. Urban councils

may raise revenue through property taxes, and both district and urban councils may raise rev-

enue through trade licenses, clinic fees, and service fees. However, councils depend on trans-

fers from the national government for a significant percentage of their revenue; councils re-

159

Local Government (District Council) Act, 1965, arts. 31, 33, First Schedule. 160

Amy Poteete, Bashi Mothusi, and Daniel Molaodi, “Comparative Assessment of Decentralization in Africa: Bot-

swana In-Country Assessment Report,” United States Agency for International Development (2010): 10–13. 161

Local Government (District Council) Act, 1965, arts. 39, 40. 162

Hope, “Decentralisation,” 524–525. 163

Bogosi Act of 2008, arts. 4–6, 13, 15, 20. 164

Gretchen Bauer, “‘What Is Wrong with a Woman Being Chief?’ Women Chiefs and Symbolic and Substantive Rep-

resentation in Botswana,” Journal of Asian and African Studies 51, no. 2 (2014): 226. 165

George J. Honde and Fitsum G. Abraha, “Botswana 2015,” African Economic Outlook, African Development Bank,

Organization for Economic Cooperation and Development, United Nations Development Programme (2015): 7.

http://www.bw.undp.org/content/dam/botswana/docs/Publications/Botswana%60s%20GDP%202015.pdf. 166

Honde and Abraha, “Botswana 2015,” 7.


35

ceived 70 to 80 percent of revenue from the national government from the years 2005/2006

through 2009/2010.167

Assessment

Botswana is characterized as a highly centralized State with a relatively stable and functional

political structure. Typically, decentralization is a mechanism that can bring governance closer

to communities and allow community members to have direct influence on the public deci-

sions that affect their lives. However, given Botswana’s very small population and geographical

size, the lack of decentralization has not generally prevented constituencies’ interests from be-

ing accommodated.


Elections in Botswana have been successful technical exercises that produced stable govern-

ments. However, aspects of the electoral system have been criticized for limiting representation

of opposition parties, women, and minority tribes. The first-past-the-post system of elections for

members of the National Assembly hinders accommodation by underrepresenting opposition

parties. The selection for inclusion in the House of Chiefs contributes to women being severely

underrepresented in the legislature and has historically excluded non-Tswana tribes.

a. System design

Elections for the president and the National Assembly (Botswana’s lower house) are held every

five years or within 60 days of the dissolution of parliament.168 The president is indirectly elect-

ed by the National Assembly.169 The president appoints a cabinet of ministers from among the

members of the National Assembly.170

Of the National Assembly’s 61 members, 57 are directly elected by plurality from single-

member constituencies,171 (also known as ‘first-past-the-post’ or FPTP), and four ‘specially

elected members’ are indirectly elected by the other members.172

167

Honde and Abraha, “Botswana 2015,” 15. 168

BOTSWANA CONST., 1966, art. 90. 169



The Judicial Service Commission appoints a temporary Delimitation Commission to revise constituency bounda-

ries every five to ten years. Constituencies are of approximately equal size while taking into account factors such as

communities of interest and boundaries of tribal territories. BOTSWANA CONST., 1966, art. 63–65. 172

The president and each elected member can nominate four candidates to be specially elected members; each

elected member can then vote for four of these candidates, and the top four candidates with the most votes are


36

The House of Chiefs forms the upper house of the legislature and consists of at least 33 and

no more than 35 members: up to 12 chiefs from 12 constitutionally recognized regions;173 five

members appointed by the president; and up to 20 members selected by regional electoral

colleges.174 The members serve five-year terms and cannot be a member of a political party.175

In practice, the FPTP system for National Assembly elections has overrepresented the ruling

party and underrepresented opposition parties in relation to their share of the popular vote.176

The ‘specially elected members’ in the National Assembly and government-appointed mem-

bers of district and urban councils further the overrepresentation of the ruling party.177 These

structural components of the electoral system have contributed to the political dominance of

the Botswana Democratic Party at the national level.

The process of selection of chiefs themselves has a significant impact on representation. Chief-

taincy traditionally is hereditary, although today some chiefs are elected.178 Chieftaincy histori-

cally was reserved for men. However, opportunities for women to serve as chiefs have in-

creased in recent years. The first woman was elected to the House of Chiefs in 1999 and held

the seat for a five-year term.179 The first woman to join the House of Chiefs as a Paramount

Chief joined in 2004, serving in one of the permanent seats.180 While chieftaincy has slowly

been opening to women, chiefs remain predominantly men.

Representation of minority, non-Tswana tribes within the House of Chiefs has also generated

intense debate. The House of Chiefs originally consisted of 15 members: the chiefs of the eight

constitutionally recognized Tswana tribes as permanent members; four members elected by

the subchiefs of the former crown lands, which were dominated by minority tribes; and three

elected. Schedule to the Constitution of Botswana, Election of Specially Elected Members of the National Assembly,

art. 4. 173

For areas other than Ghanzi, Chobe, Kgalagadi, and North East, the permanent members must be a chief and are

selected “according to the established norms and practices of those areas.” For Ghanzi, Chobe, Kgalagadi, and North

East, permanent members must be a chief and are selected by the chiefs of those areas. BOTSWANA CONST., 1966, art,

78, cl. 1-2. 174

The regional electoral colleges are composed of headmen, including chiefs, and are chaired by a government

official appointed by the minister of local government. BOTSWANA CONST., 1966, arts. 77, 78 (amendment 2005). 175

BOTSWANA CONST., 1966, art. 82, cl. 1(a)(d). 176

In 2009, the BDP won 53.26 percent of the popular vote but 78.95 percent of the seats in the National Assembly.

The second place party won 21.94 percent of the popular vote but 10.53 percent of the seats. Electoral Institute for

Sustainability of Democracy in Africa, “Botswana: 2009 National Assembly election results” (February 2010),

http://www.eisa.org.za/WEP/bot2009presults.htm. 177

In 2009, only 7.1 percent of appointees were from the opposition, even though the opposition held 32.2 percent

of elected council seats. Poteete, Mothusi, and Molaodi, “Comparative Assessment of Decentralization in Africa,” 21–

22. 178

Mpho Molomo, “Chieftainship (Bogosi) Endures Despite Democratic Consolidation in Botswana,” Afrobarometer

Briefing Paper No. 130 (February 2014): 2,

http://afrobarometer.org/sites/default/files/publications/Briefing%20paper/afrobriefno130.pdf. 179

Bauer, “What Is Wrong,” 228. 180

Bauer, “What Is Wrong,” 228.


37

members (who did not need to have tribal associations) elected by the other 12 members of

the House of Chiefs.181 This arrangement attracted criticism for discriminating against non-

Tswana tribes. Tswana chiefs were guaranteed a majority of seats and held these seats per-

manently, while most tribes were excluded. In 2001, the High Court ruled that the exclusion of

certain tribes from the House of Chiefs was discriminatory and unjustified,182 which resulted in

a constitutional amendment that changed the system of selection of members of the House of

Chiefs in 2005. However, critics argue that the 12 regions specified in the constitutional

amendment are based around the eight Tswana tribes and four minority-dominated crown

lands as before, resulting in no change in those seats in practice. The degree to which minority

tribes are represented in the House of Chiefs therefore continues to be debated.

b. Political parties

Botswana has few restrictions on political parties, and registration of a political party is relative-

ly easy. All the main political parties select candidates through primary elections. However, po-

litical parties have little formal control over their elected representatives since representatives

can switch parties without losing their seats.183 And even though Botswana is a multiparty sys-

tem with few formal restrictions on political parties, the Botswana Democratic Party has domi-

nated politics at the national level, as described above.

c. Special provisions

There are no provisions within Botswana’s constitution to promote the representation of

women or minority tribes. Women represent less than ten percent of parliamentarians as of

2015.184 The two main political parties introduced 30 percent quotas for women on electoral

lists in 1999, but have not always met this target.185

Assessment

The system of election and selection in Botswana does not promote equity of representation.

FPTP systems of election tend to drown out the voices of minority constituencies, and this is

evident in the makeup of the National Assembly. Because the president is indirectly elected by

the already noninclusive National Assembly, the Botswana Democratic Party’s dominance of

power is reinforced.

181

BOTSWANA CONST., 1966, art. 77 (prior to 2005 amendment). 182

Kamanako and Others v. Attorney-General and Another (2001), High Court of Botswana. Refworld, “World Directory

of Minorities and Indigenous Peoples – Botswana: Overview,” 2008,

http://www.unhcr.org/refworld/country,,,COUNTRYPROF,BWA,,4954ce1b23,0.html. 183

Gloria Somolekae, “Political Parties in Botswana,” EISA Research Report No. 27, 2005, 20–25. 184

World Bank Open Data, “Proportion of Seats Held by Women in National Parliaments: Botswana,” World Bank

Group, http://data.worldbank.org/indicator/SG.GEN.PARL.ZS?locations=BW. 185

Quota Project, “Voluntary Political Party Quotas,” http://www.quotaproject.org/systemParty.cfm.


38

Although women now hold permanent seats within the House of Chiefs and also have held

elected seats, customs and practices related to the system of selection of chiefs limit opportu-

nities for women to serve as representatives. In terms of minority tribes, the 2001 High Court

finding of discrimination within the system of selection of members of the House of Chiefs was

significant, although the effect of the constitutional amendment meant to increase minority

representation remains unclear. Therefore, while there have been steps toward greater inclu-

sion within the House of Chiefs, overall the prospects for political accommodation within the

institution remain relatively low.

3. EXECUTIVE BRANCH

The president of Botswana is head of State and head of government, commander in chief, and

an ex officio member of the National Assembly. There is significant political power vested in the

office of the president, and, while the National Assembly has successfully pressured the govern-

ment to introduce or withdraw certain laws, in practice there are few checks on the executive.


Botswana is a parliamentary system, meaning that the executive is responsible to the legisla-

ture. The head of the executive (the president) has the same responsibilities as a prime minis-

ter.186 The president of Botswana is head of State and head of government, commander in

chief, and an ex officio member of the National Assembly.187 The president cannot hold office

for more than ten years total and must stand for reelection whenever the National Assembly is

dissolved.188

The president can, at any time, discontinue or dissolve the National Assembly.189 The president

also can appoint the chief justice of the High Court and the president of the Court of Appeal.190


The legislative and judicial branches can provide checks on the executive. Constitutionally, the

National Assembly can pass a vote of no confidence in the government with a simple majority,

which causes the dissolution of parliament and resignation of the president.191 The High Court

186

South Africa is another example of a parliamentary republic with a powerful president. 187

BOTSWANA CONST., 1966, arts. 30, 48, 57. 188



BOTSWANA CONST., 1966, art. 96, 100. 191

BOTSWANA CONST., 1966, art. 92.


39

and Court of Appeal both have the power to interpret the constitution, which they can use to

overturn executive decisions.192

Although the legislature is a professional body with relatively strong capacity (see Legislative

Branch), many of the constitutional checks between the legislature and executive are not em-

ployed in practice. There even seems to be some disagreement within the political discourse

on whether the provision on a vote of no confidence can be exercised.193 Nonetheless, the Na-

tional Assembly has successfully pressured the government to introduce or withdraw certain

laws. The National Assembly also has held the executive accountable in limited ways through

parliamentary procedures such as ‘question time’, during which any member of parliament can

question cabinet ministers.194

The courts have served as the primary institutional check on the executive and have been

largely effective in this role.195

Assessment

Botswana is an example of a strong executive with power centralized in one person. While

strong executives do not necessarily undermine political accommodation, a combination of

structural factors within Botswana’s political system results in an executive structure that does

not particularly promote equity of representation and decision making. Specifically, a parlia-

mentary system with a single dominant party combined with negative incentives for the legisla-

ture to exercise checks on the executive has led to a powerful president in Botswana.


The legislature in Botswana is composed of the National Assembly (the lower house), which holds

legislative power, and the House of Chiefs (the upper house), which advises on tribal affairs. The

House of Chiefs is a measure to try to accommodate traditional leaders into the formal govern-

ance system. However, it has historically been dominated by members of the dominant ethnic

group and by men, limiting how accommodating it is in practice.

192

BOTSWANA CONST., 1966, arts. 105–106. 193

Amy R. Poteete, “Renegotiation of Executive Powers and Executive-Legislative Relations in Botswana,” Paper pre-

sented at the Annual Meeting of the American Political Science Association (Washington, DC, September 2010): 5,

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1643102. 194

Charles Manga Fombad, “The Separation of Powers and Constitutionalism in Africa: The Case of Botswana,” Bos-

ton College Third World Law Journal 25, no. 2 (2005): 320–322, 325–326. 195

Fombad, “Separation of Powers,” 341.


40


Botswana has a bicameral legislature: the National Assembly holds legislative power, while the

House of Chiefs advises on tribal affairs.

The National Assembly consists of 61 members, and the president and attorney general are

nonvoting ex officio members.196 The National Assembly serves for a period of five years unless

dissolved earlier or if Botswana is at war and it extends its term.197

The House of Chiefs consists of at least 33 and no

more than 35 members. The 12 chiefs from the con-

stitutionally recognized regions are permanent mem-

bers, while the other members serve for five years

unless the House of Chiefs is dissolved earlier.198

In practice, the legislature in Botswana is a profes-

sional body with relatively strong capacity. The Na-

tional Assembly convenes regularly199 and the House

of Chiefs convenes three times a year for a period of

two weeks at each sitting.200 Since there are no term

limits for parliamentarians and individuals run regular-

ly for reelection, it is possible for parliamentarians to

build knowledge and experience over time.201


The National Assembly can pass legislation or a vote of no confidence by simple majority and

constitutional amendments by two-thirds majority.202 The National Assembly must consult the

House of Chiefs before consideration of legislation related to tribal concerns.203 (See Traditional

and Customary Arrangements.)

196

BOTSWANA CONST., 1966, arts. 57, 58. 197

The National Assembly can extend its term by up to one year at a time for a maximum of five years. BOTSWANA

CONST., 1966, art. 91. 198

BOTSWANA CONST., 1966, arts. 77, 78, 82 (amended 2005). 199

Poteete, “Renegotiation of Executive Powers,” 6. 200


Poteete, “Renegotiation of Executive Powers,” 6. 202

BOTSWANA CONST., 1966, arts. 87, 89, 92. 203

BOTSWANA CONST., 1966, art. 88.

Prospect for Political

Accommodation: House of Chiefs

Botswana’s House of Chiefs aims to ac-

commodate traditional leaders through

an advisory upper chamber in the legis-

lature. Historically, the House of Chiefs

has been dominated by traditional

leaders of the dominant ethnic group,

limiting the degree to which the institu-

tion supports accommodation in prac-

tice. More recently, changes to the pro-

cess for selecting chiefs has increased

opportunities for women and may sup-

port the inclusion of minority tribes.


41


The National Assembly cannot consider legislation to increase taxes or revenues or related to

budgetary payments or debt without the recommendation of the president.204 The president,

though, cannot veto bills passed by the National Assembly, but can withhold assent. In this

case, the National Assembly can resubmit the bill to the president in six months, and if the

president again withholds consent, parliament is automatically dissolved.205

As noted above, many of the constitutional checks between the legislature and executive are

not employed in practice, and the executive has substantial influence over the lawmaking pro-

cess.

The High Court and Court of Appeal both have the power to interpret the constitution, which

they can use to overturn legislative decisions.206

Assessment

Many of the constitutional checks between the legislature and executive are not employed in

practice, and the executive has substantial influence over the lawmaking process. The integra-

tion of traditional leaders as an advisory upper chamber in the legislature is important for in-

clusion; however, the degree to which the House of Chiefs is representative is limited by the

nature of the chieftaincy structure in Botswana, since chiefs are predominantly men.


Kgotlas, traditional local-level forums, offer a venue for public participation in national and local

governance. While they serve to connect the government to the general public, there has been

decreasing turnout and lack of participation among minority groups, limiting the degree to

which kgotlas support political accommodation in practice.


The Bogosi Act recognizes the responsibility of chiefs to convene kgotlas, traditional local-level

forums, which provide opportunities for public engagement with national and local politi-

cians.207 (See Traditional and Customary Arrangements.)

For example, ministers and civil servants use kgotlas to explain government policies and solicit

feedback from local constituencies.208

204



BOTSWANA CONST., 1966, arts. 105–106. 207

Bogosi Act of 2008, art. 17.


42

Although kgotlas are a longstanding traditional institution in Botswana, they witnessed declin-

ing public participation in the 2000s.209 One potential reason for the decline in public participa-

tion includes enforcement of strict dress codes, noted in a number of recent instances, which

disproportionately affect women and youth.210 Kgotlas have also received criticism for exclud-

ing non-Tswana tribes211 and for being dominated by both the ruling party and men.212


Parliamentarians use kgotlas to explain the roles and responsibilities of the national legislature

and government policies. Kgotlas also provide a platform to solicit feedback on policies. Parlia-

mentarians typically address a series of kgotla meetings in their electoral district when parlia-

ment is in recess.213

The National Legislature also has constituency offices around the country to facilitate interac-

tion between parliamentarians and their constituents.214


District councils provide an avenue for public participation in local governance. All district

council meetings must be open to the press and public unless a majority of members vote to

have a closed meeting.215

Assessment

Kgotlas provide opportunities for exchange between ministers, civil servants, and parliamentar-

ians, respectively, and the general public. Botswanans enjoy a high level of access to different

government representatives and a number of opportunities to provide these representatives

with feedback through kgotlas, which contribute to political accommodation.

However, turnout for kgotlas has decreased, and the lack of participation by women and minor-

ity tribes in kgotlas suggests that Botswanans are not using these forums to accommodate

views of different constituencies. The lack of alternative mechanisms for participation means

kgotlas will need to become more inclusive to truly accommodate diverse interests.

208

David Sebudubudu and Bertha Z. Osei-Hwedie, “Pitfalls of Parliamentary Democracy in Botswana,” Afrika Spec-

trum 41, no. 1 (2006): 44. 209

Sebudubudu and Osei-Hwedie, “Pitfalls of Parliamentary Democracy,” 44. 210


Tlamelo Mompati and Gerard Prinsen, “Ethnicity and Participatory Development Methods in Botswana: Some

Participants Are to be Seen and Not Heard,” Development in Practice 10, no. 5 (2000): 631. 212

Sebudubudu and Osei-Hwedie, “Pitfalls of Parliamentary Democracy,” 44–45. 213



Local Government (District Councils) Act, 1965, arts. 20, 24.


43


The incorporation of traditional and customary arrangements into the modern political system

is integral to political accommodation in Botswana. The State works through traditional and cus-

tomary institutions to bring governance closer to communities and enable citizens to have direct

influence in public decisions.


The chieftaincy structure has broad legitimacy in Botswana, and traditional leaders are trusted

more than almost any other political institution in the country.216 The government has sought

to accommodate tribes through institutions including land boards, tribal administrations, the

House of Chiefs, and kgotlas. Although the government traditionally has included only the

Tswana tribes, there has been internal and external pressure to incorporate a wider range of

tribes.217

The Chieftainship Act, passed in 1974, first provided for the formal recognition of tribal admin-

istrations.218 Yet this act effectively prevented the recognition of non-Tswana tribes.219 As a re-

sult, in 2008 it was replaced by the Bogosi Act, which allows the minister of local government to

recognize non-Tswana tribes.220 The Bogosi Act codifies the responsibility of chiefs to promote

the welfare of their tribes, carry out the instructions of the minister of local government, con-

vene kgotlas to obtain advice, arrange tribal ceremonies, oversee customary courts, facilitate

the admission of new members to the tribe, and prevent crime.221 The minister of local gov-

ernment may withdraw recognition of a chief if the minister “considers it to be in the public in-

terest” or under certain conditions when a chief has been deposed.222

In part because of pressure to accommodate a wider range of tribes, in 2001 the government

created a special commission to investigate tribal inequity. The government implemented

many of this commission’s recommendations by amending the constitution to expand the

House of Chiefs in 2005 and by replacing the Chieftainship Act with the Bogosi Act in 2008.

Nonetheless, some people still allege discrimination against non-Tswana tribes, particularly in

216

In the 2014/2015 Afrobarometer survey, 45.5 percent of respondents reported that they trust traditional leaders

“a lot” and 25.7 reported that they trust traditional leaders “somewhat.” By comparison, 25.8 percent reported that

they trusted local government officials “a lot.” The only institution with comparable trust is that of the president.

Afrobarometer, “Online data analysis tool,” http://afrobarometer.org/online-data-analysis/analyse-online. 217

Nyati-Ramahobo, “Minority Tribes in Botswana,” 4. 218

Chieftainship Act of 1987. 219

Botswana’s constitution officially recognizes only the eight Tswana tribes. 220

Bogosi Act of 2008, art. 3. 221

Bogosi Act of 2008, arts. 17–19. 222

Bogosi Act of 2008, art. 15.


44

the House of Chiefs (see Systems of Election and Selection), and the effects of the Bogosi Act on

the recognition of non-Tswana tribes are still unclear.223


The House of Chiefs is the upper house of the legislature. (See Legislative Branch.) The National

Assembly must submit any bill related to tribal organization, property, customary law, or cus-

tomary courts to the House of Chiefs for review.224 However, the House of Chiefs holds no leg-

islative or veto powers.


The Customary Law Act provides for the option to use

customary law instead of common law in certain civil

cases that involve tribesmen or women.225 Customary

law is not codified or standardized nationwide. The law

allows for the use of whatever customary law applies

in a particular area based on written and oral

sources.226

The Customary Courts Act (1974) sets up a system of

customary courts to administer customary law and other laws prescribed by the minister of

local government.227 The minister of local government has the authority to establish and rec-

ognize these courts, determine their jurisdiction, determine their composition, and suspend or

dismiss members.228 Tribal chiefs may recommend that traditional courts be recognized, es-

tablished, or abolished and can appeal any decisions to higher customary courts.229 This paral-

lel judicial system exists on several levels, including customary courts, higher customary courts,

and customary courts of appeal, all of which fall under the jurisdiction of Botswana’s High

Court.

Customary courts are widely used in Botswana, and many citizens in rural areas reportedly find

them to be fast, accessible, and comprehensible.230 Nonetheless, customary law and custom-

223



Customary Law Act of 1969, arts. 3–5. 226

Customary Law Act of 1969, arts. 10, 11. 227

Customary Courts Act of 1974, art. 15, 16. 228

Customary Courts Act of 1974, arts. 7–9. 229

Customary Courts Act of 1974, arts. 7, 40. 230

Sharma, “Role of Traditional Structures,” 7.


Customary Law and Customary Courts

Botswana recognizes customary law as a

parallel legal system to common law that

governs members of tribes. It also has a

system of customary courts to adjudicate

on these laws.


45

ary courts face the same criticisms as other formally recognized traditional institutions because

customary law tends to equate with Tswana law.231

Assessment

The integration of traditional and customary arrangements into the modern political system is

at the heart of political accommodation in Botswana. At independence, the State was able to

establish its legitimacy and authority in communities by incorporating traditional and custom-

ary arrangements by establishing the House of Chiefs and working through kgotlas.232 The

State brought governance closer to communities and enabled citizens to have direct influence

in public decisions through these traditional and customary institutions. The House of Chiefs

and kgotlas continue to play an important role in the political system in Botswana. Citizens view

the chieftaincy structure as legitimate and trustworthy, conveying legitimacy onto the House of

Chiefs, specifically, and the legislature by extension.

The role of traditional and customary arrangements within the political structure is not without

controversy, however. In terms of representation, some argue that the constitution and other

legislation privilege the Tswana tribe while constraining representation of minority tribes.233

The 2005 constitutional amendment that expanded the House of Chiefs and the 2008 Bogosi

Act that is the basis for tribal administrations can be interpreted as an attempt to broaden ac-

commodation to all ethnic groups. However, the degree to which these efforts actually in-

creased representation is debated. Additionally, women have traditionally been excluded from

chieftaincy, although female chiefs have been selected to serve as chiefs in recent years. (See

Systems of Election and Selection.)

Conclusion

Botswana has been politically stable and economically prosperous for decades. Nongovern-

mental organizations and political analysts have recognized Botswana for its governance ar-

rangements, and many Botswanans report having trust in and positive perceptions of the per-

formance of political leaders and governance institutions.234

231


Patrick Molutsi, “Customary Governance and Democracy Building: The Case of Botswana,” Customary Governance

and Democracy Building: Exploring the Linkages, Conference Report, International Institute for Democracy and Elec-

toral Assistance (2011): 29. 233


Afrobarometer, “Online data analysis tool,” http://afrobarometer.org/online-data-analysis/analyse-online. Over 50

percent of respondents report having trust in and approve or strongly approve of the way that the following repre-

sentatives were doing their jobs: the president, parliament/national assembly, elected local government council, and

traditional leaders.


46

The incorporation of traditional and customary arrangements into the modern political system

is central to political accommodation within governance structures in Botswana. The state

works through traditional and customary institutions to bring governance closer to communi-

ties and enable citizens to have direct influence in public decisions. Land boards, tribal admin-

istrations, the House of Chiefs in the legislature, and kgotlas as public consultation forums all

increase participation and inclusion. While there are debates around how representative these

institutions are, the debates focus on how to make them more representative, not whether

they should exist. This case study points to opportunities for greater political accommodation

in Botswana, but recognizes that the political system has accommodated various interests suc-

cessfully since independence.

References

Legal References

Bogosi Act, 2008.

Chieftainship Act, 1987.

Constitution of Botswana, 1966.

Customary Courts Act, 1974.

Customary Law Act, 1969.

Electoral Act, 1968.

High Court of Botswana, Kamanako and Others v. Attorney-General and Another (2001).

Local Government (District Council) Act, 1965.

Townships Act, 1965.

Tribal Land Act, 1970.

Nonlegal References

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Search of Prosperity: Analytic Narratives on Economic Growth, edited by Dani Rodrik, 80–122. Princeton:

Princeton University Press, 2003.

Afrobarometer. “Online Data Analysis Tool.” http://afrobarometer.org/online-data-analysis/analyse-

online.

Bauer, Gretchen. “‘What Is Wrong with a Woman Being Chief?’ Women Chiefs and Symbolic and Substan-

tive Representation in Botswana.” Journal of Asian and African Studies 51, no. 2 (2014): 222–237.

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bin/news.cgi?d=20110707&i=Parliament_revokes_Local_Police_Act.

Du Toit, Pierre. State Building and Democracy in Southern Africa: Botswana, Zimbabwe, and South Africa.

Washington, DC: United States Institute of Peace, 1995.

Electoral Institute for the Sustainability of Democracy in Africa. “Botswana: Election Archive,” n.d.

http://www.eisa.org.za/WEP/botelectarchive.htm.


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Fombad, Charles Manga. “The Separation of Powers and Constitutionalism in Africa: The Case of Bot-

swana.” Boston College Third World Law Journal 25, no. 2 (2005): 301–342.

Good, Kenneth. “Authoritarian Liberalism: A Defining Characteristic of Botswana.” Journal of Contempo-

rary African Studies 14, no. 1 (1996): 29–51.

Hanson, Stephanie. “Botswana: An African Success Story Shows Strains.” Council on Foreign Relations

Backgrounder. (10 January 2008). http://www.cfr.org/botswana/botswana-african-success-story-

shows-strains/p15108.

Hope, Kempe Ronald, Sr. “Decentralisation and Local Governance Theory and the Practice in Botswana.”

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Honde, George J., and Fitsum G. Abraha. “Botswana 2015.” African Economic Outlook. African Develop-

ment Bank, Organization for Economic Cooperation and Development, United Nations Development

Programme (2015).

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rometer Briefing Paper No. 130, February 2014.

http://afrobarometer.org/sites/default/files/publications/Briefing%20paper/afrobriefno130.pdf.

Molomo, Mpho. “Democracy under Siege: the Presidency and Executive Powers in Botswana.” Pula: Bot-

swana Journal of African Studies 14, no. 1 (2000): 95–108.

Molomo, Mpho. “The Need for Electoral Reform in Botswana.” African Journal on Conflict Resolution 4, no.

2 (2004): 55–77.

Molutsi, Patrick. “Customary Governance and Democracy Building: The Case of Botswana.” Customary

Governance and Democracy Building: Exploring the Linkages. Conference Report. International Institute

for Democracy and Electoral Assistance, 2011.

Mompati, Tlamelo, and Gerard Prinsen. “Ethnicity and Participatory Development Methods in Botswana:

Some Participants Are to Be Seen and Not Heard.” Development in Practice 10, no. 5 (2000): 625–637.

Nyati-Ramahobo, Lydia. “Minority Tribes in Botswana: the Politics of Recognition.” Minority Rights Group

International, 2008.

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business/committees.

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lishers, 1987.

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DC, September 2010. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1643102.

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ca: Botswana In-Country Assessment Report.” United States Agency for International Development,

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48

Refworld. “World Directory of Minorities and Indigenous Peoples—Botswana: Overview,” 2008.

http://www.unhcr.org/refworld/country,,,COUNTRYPROF,BWA,,4954ce1b23,0.html.

Republic of Botswana Ministry of Local Government. “Mandate.” http://www.gov.bw/en/Ministries--

Authorities/Ministries/Ministry-of-Local-Government-MLG1/About-MLG/Mandate/.

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ka Spectrum 41, no. 1 (2006): 35–53.

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of Botswana.” Community Empowerment and Social Inclusion Program. World Bank Institute, 2004.

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HOW GOVERNANCE FUNCTIONS | ETHIOPIA

49

ETHIOPIA

Executive Summary

This case study focuses on Ethiopia’s governance arrangements analyzed through the lens of









Ethiopia’s 1995 constitution was drafted following decades of armed conflict. The constitution

aims to maintain stability in a multiethnic country with a history of violent conflict and seces-

sionist movements. As part of the attempt to achieve stability, the constitution established a

federal system that is known as ‘ethnic federalism’. The borders of Ethiopia’s nine regions are

drawn largely along ethnic lines, and the constitution gives significant rights to ethnic groups

(‘nationalities’). These include cultural rights, the right to self-government, and the right to self-

determination. Self-determination enables ethnic groups to secede from Ethiopia or form new

regions within Ethiopia, although the right to secede has been largely symbolic to date. Ethnici-

ty is also incorporated into the Ethiopian political system through the legislative branch, since

the upper house of parliament is elected as representatives of Ethiopia’s ‘Nations, Nationalities,

and Peoples’.

Despite the constitutional provisions to promote accommodation between ethnic groups with-

in the political system, there has been low-intensity conflict in Ethiopia since the current gov-

ernance structures came into being in the mid-1990s. Governance has been characterized by

the dominance of a single political party and restrictions on basic freedoms. Much decision

making in Ethiopia remains centralized, and there is limited space for public participation in

political life. While Ethiopia’s constitution and subsequent laws recognize the need for political

accommodation between different constituencies, this case study highlights challenges that

can arise in the implementation of governance mechanisms meant to achieve accommodation.


50

Table 5—Accommodating and Less Accommodating Aspects in Ethiopia


ETHIOPIA

Ethnic federalism: self-determination, self-

government, and cultural rights to ethnic

groups

All nationalities represented in national upper

house

Recognition of public participation





Background

Ethiopia is one of the only countries in Africa that was not colonized by a foreign power in

modern history, although it was briefly occupied by Italy from 1936 to 1941. Ethiopia was able

to maintain its independence, in part, because of a long tradition of centralized authority that

continues today.

Beginning in the late nineteenth century, Ethiopia’s emperors conquered the area correspond-

ing to the country’s modern borders. The Ethiopian empire was multiethnic, but the Amhara

people formed its political core.235 The government attempted to assimilate other ethnic

groups by making Amharic the official language, making Orthodox Christianity (the religion of

the Amhara) the State religion, and promoting a national Ethiopian identity.236 The concept of

ethnicity was fluid, and members of any ethnic group could gain influence by adopting an Am-

haric identity.237 For example, Emperor Haile Selassie, who ruled Ethiopia from 1930 through

1974, was primarily of Oromo descent but assumed an Amhara identity.238

Armed conflict and instances of violent resistance to the State significantly influenced political

development in Ethiopia in more recent decades. In 1974, the military overthrew the emperor.

A military junta, known as the Derg, took control of the State. Throughout the 1980s under the

Derg regime, armed groups demanding self-determination gained momentum. The strongest

secessionist movement was based in the region of Eritrea, while another powerful armed

group, the Tigray People’s Liberation Front (TPLF), fought for a national revolution in Ethio-

pia.239 In 1989, the TPLF formed the Ethiopian People’s Revolutionary Front (EPRDF), a coalition

235

Christopher Clapham, Transformation and Continuity in Revolutionary Ethiopia, (Cambridge: Cambridge University

Press, 1988): 23. 236

Alemseged Abbay, “Diversity and State-Building in Ethiopia,” African Affairs 103, no. 413 (2004): 593. 237

Clapham, Transformation and Continuity, 23. 238

His paternal grandmother was Amhara. Clapham, Transformation and Continuity, 24. 239

The TPLF originally was an ethnicity-based organization appealing to support from the Tigray, but later sought

support from other ethnic groups to overthrow the Derg.


51

of four movements that remained Tigrayan at its core.240 Ultimately, the Eritrean separatists

and EPRDF together overthrew the Derg regime in 1991.241

Ethiopia went through a period of transitional governance in the early 1990s, and Eritrea was

recognized as an independent country in 1993. The EPRDF invited a range of groups to partici-

pate in the formulation of a transitional charter, but dominated the process and the transition-

al government that followed. The EPRDF also dominated the constitutional process that result-

ed in the constitution of 1995.242

Since 1995, Ethiopia has increasingly struggled to accommodate diverse constituencies. The

population was approximately 99.4 million in 2015, making Ethiopia the second most populous

country in Africa after Nigeria.243 As of 2015, the EPRDF had won every election since the cur-

rent constitution took effect, and there was continuing low-scale armed opposition to the gov-

ernment, particularly from groups representing the Oromo, the largest ethnic group in Ethio-

pia, and Somalis from the Ogaden region.








tions that can potentially accommodate competing political interests.

240

See Sarah Vaughan, “The Addis Ababa Transitional Conference of July 1991: Its Origins, History, and Significance,”

Centre of African Studies (Edinburgh University, 1994) and Alemseged Abbay, Identity Jilted, Or, Re-imagining Identity?:

The Divergent Paths of the Eritrean and Tigrayan Nationalist Struggles, (Asmara: The Red Sea Press, 2006). 241

The Eritreans and TPLF had mostly fought together in the war despite occasional conflicts. The Eritreans under-

stood that a new regime under the TPLF/EPRDF would recognize their independence, which happened following a

referendum in 1993. John M. Cohen, “Ethnic Federalism in Ethiopia,” Northeast African Studies 2, no. 2 (1995): 159. 242

International Crisis Group, “Ethiopia: Ethnic Federalism and Its Discontents,” Crisis Group Africa Report No. 153,

(September 4, 2009): 4. 243

World Bank, “World Bank Open Data Project: Ethiopia: Population, total,”

http://data.worldbank.org/indicator/SP.POP.TOTL?locations=ET&view=map. 244

Here, ‘representatives’ is used broadly to mean political, community, and traditional leaders who represent, or



52

The framework consists of six focal areas or ‘Strands’, each representing complementary paths

that can contribute to political accommodation. The governance Strands are:



3. Executive branch




Decisions in one Strand affect how all the others function in practice. Accordingly, it is im-

portant to consider their relationships and develop options that represent coherent choices

across all the Strands.


Ethiopia has used specific mechanisms that promote accommodation of different interests.



Ethiopia has a system of ethnic federalism, with nine regions. Regional borders are drawn along eth-

nic lines, and the constitution gives ethnic groups the right to self-determination, linguistic and cul-

tural rights, and the right to self-government. In theory, power is highly decentralized to regional gov-

ernments, but in practice the national government is dominant and highly centralized.

a. Structure

Ethiopia is a federal State with nine regional states (‘regions’) and two chartered cities, Addis

Ababa, the capital, and Dire Dawa, the second-largest city. Regions are subdivided into

woredas, administrative units of local government, which are in turn divided into kebeles, formal

village associations. Some regions, like the Southern region, have additional levels of govern-

ment.

At the national level, Ethiopia is governed by a president, prime minister, council of ministers,

and a bicameral legislature consisting of the House of People’s Representatives (the lower

house) and the House of the Federation (the upper house). Regions, woredas, and kebeles all

have an elected legislative council, an administrative head, and an executive council.


53

Elects

Na onalexecu vebranch

Na onallegisla vebranch

Subna onallegisla vebranch

Subna onalexecu ve

Public

PresidentPrimeminister

HouseoftheFedera on

RegionalCouncils

Elects

Elect

Appoints

HouseofPeople’sRepresenta ves

Elect

CouncilofMinisters

Elects

Appoints

Headsofgovernment

Appoint

Execu veCouncil

Approve

Figure 6—Ethiopia’s Political Structure

Ethiopia’s political structure is rooted in ethnicity, which the constitution refers to as ‘Nations,

Nationalities, and Peoples’ (hereafter referred to as ‘nationalities’). The constitution defines a

nationality as “a group of people who have or share a large measure of a common culture or

similar customs, mutual intelligibility of language, belief in a common or related identities, a

common psychological make-up, and who inhabit an identifiable, predominantly contiguous

territory.”245 Ethiopia recognizes over 80 nationalities. However, it can be difficult to differenti-

ate between nationalities in practice, partly due to intermarriage. Additionally, identifying con-

tiguous geographical regions occupied by nationalities is difficult given Ethiopia’s highly mobile

population, a significant percentage of whom are pastoralists.

Ethiopia’s political structure can be described as ethnic federalism. The constitution vests “all

sovereign power” in nationalities, and the borders of the regions are drawn along ethnic

lines.246 According to the constitution, every nationality has the right to:

“self-determination, including the right to secession,” as well as the right to form a new

region;

245

CONSTITUTION OF THE FDRE, 1995, art. 39. 246

CONSTITUTION OF THE FDRE, 1995, art. 46, cl. 2.


54

“speak, to write, and to develop its own language; to express, to develop, and to pro-

mote its culture; and to preserve its history;” and

“self-government,” including establishment of their own institutions and receipt of equi-

table representation in the regional and national governments.247

The right to secession is important to the federal system in Ethiopia, particularly given Eritrea’s

successful independence movement. As a precondition to participating in the transitional gov-

ernment in the early 1990s, parties representing the Oromo, Somali, and Afar nationalities

demanded the right to secession.248 According to the constitution, a nationality can secede

through the following process:

1. A nationality’s legislative council approves se-

cession by a two-thirds majority.

2. The national government organizes a referen-

dum within three years of the council’s deci-

sion.

3. A majority of voters approves secession in the

referendum.

4. The national government transfers its powers

to the nationality’s council.

5. Assets are divided.249

A majority of voters from the nationality seeking to leave needs to approve session,250 rather

than the majority of voters in the country. The constitution lays out a similar process for na-

tionalities to secede from a region and form a new region within Ethiopia.251

No group has yet seceded from Ethiopia or formed its own region under the constitution,252

although the Silte nationality followed the constitutional process governing secession to create

a new administrative unit.253 The Silte, a small ethnic group in the Southern Nations, Nationali-

ties and Peoples region, successfully ‘seceded’ from the Gurage, a larger ethnic group, in 2001.

As a result of the process, the regional government recognized the Silte as a distinct group and

granted them a separate administrative district within the region. While the experience of the

247


Alem Habtu, "Multiethnic Federalism in Ethiopia: A Study of the Secession Clause in the Constitution," Publius 35,

no. 2 (2005): 326–327. 249


Habtu, “Multiethnic Federalism in Ethiopia,” 327–328. 251

CONSTITUTION OF THE FDRE, 1995, art. 47(2). 252

In 1994, the Ogaden regional assembly voted for secession. The national government made no moves to recog-

nize the region’s independence and removed the regional president and his deputy two months later. John Marka-

kis, "The Somali in Ethiopia," Review of African Political Economy 23, no. 70 (1996): 567–570. 253

Lahra Smith, “Voting for an Ethnic Identity: Procedural and Institutional Responses to Ethnic Conflict in Ethiopia,”

The Journal of Modern African Studies 45, no. 4 (2007): 565–594.


Right to Self-determination

All nationalities in Ethiopia have the right

to secede from the country or to secede

from a region and form their own region.

In addition, referendums resulted in eth-

nic groups forming a new administrative

unit within a region or leaving one region

and joining another.


55

Silte has been the exception rather than the

norm, and some similar claims have been re-

solved through force rather than a legal pro-

cess,254 nationalities’ right to self-determination

is a mechanism that has enabled political ac-

commodation in Ethiopia.

Ethiopia also recognizes cultural and linguistic

rights. Different nationalities can participate in

education and administration, and bring cases

to court in their native language.255 The gov-

ernment tries to promote public celebration of

cultural diversity through various methods, in-

cluding highlighting different nationalities and

their cultural practices on street posters, na-

tional television programs, and postage stamps,

via touristic products, and by holding cultural

festivals like the annual ’Nationalities, Nations and Peoples’ Day’, a national meeting day for

representatives of the many peoples in the country.256

Broadly popular, Ethiopia’s decentralized language policy entails additional costs, particularly in

the Southern region, where schools teach more than 11 languages across the territory. Im-

plementation of the policy also varies among the re-

gions. Some regions teach primarily in the local lan-

guage while others, due to lack of teachers and re-

sources to teach in local languages, continue to

teach primarily in Amharic. Despite expanded lan-

guage rights at the subnational level, Amharic re-

mains the dominant language, and some to view

teaching in local languages as a form of marginaliza-

tion.257

254

For example, the Wolayte ethnic group only gained their own administrative district within the Southern Nations,

Nationalities and Peoples region after a violent conflict with the regional government. Lovise Aalen, “Ethnic Federal-

ism and Self-Determination for Nationalities in a Semi-Authoritarian State: the Case of Ethiopia,” International Journal

on Minority and Group Rights 13, no. 2/3 (2006): 258–259. 255

Aalen, “Ethnic Federalism and Self-Determination,” 256. 256

Jon Abbink, “Ethnic-Based Federalism and Ethnicity in Ethiopia: Reassessing the Experiment after 20 Years,” Jour-

nal of Eastern African Studies 5, no. 4 (2011): 598, 601. 257

Lahra Smith, “The Politics of Contemporary Language Policy in Ethiopia,” Journal of Development Studies 24 (2008):

227.


Governance Arrangements in the Southern

Region

The Southern Nations, Nationalities and Peoples

region is the most diverse region in Ethiopia,

with over 50 ethnic groups. The Southern region

has sought to accommodate its significant ethnic

diversity through regional and local arrange-

ments. It created ethnicity-based districts called

zones (for larger nationalities) or special

woredas (for smaller nationalities). As of 2005,

13 zones and eight special woredas had been

created, with other groups living as minorities

within them. In addition, the Southern region

has an upper house modeled after the House of

the Federation.


Cultural and Linguistic Rights

Subnational governments in Ethiopia have

significant autonomy in the areas of culture

and language. This allows regions to de-

termine which language to use in admin-

istration and education, while the language

of the national government remains

Amharic.


56


Ethiopia’s constitution defines the powers of the national and regional governments. The na-

tional government has power over issues including development strategy, fiscal and monetary

policy, land and natural resource use, defense and security, foreign policy, trade and transpor-

tation between regions, political parties and elections, and immigration.258

Regional governments have all powers not explicitly given to the national government, and all

regional governments have equal rights and powers.259 Regions have the power to establish

their own constitution and administration;260 set their own economic, social, and development

policies; administer land and natural resources in accordance with national laws; oversee a re-

gional civil service in accordance with national standards, and establish a regional police

force.261 Each region can also set up its own court system, and regional supreme courts have

the highest judicial power over matters reserved for the regions in the constitution.262 Finally,

each region can determine its working language.263

The constitution and recent legislation address the relationship between the federal govern-

ment and the regions, as well as the relationship between regions themselves. The Ministry of

Federal Affairs is responsible for promoting cooperation between the regions and the national

government, assisting regional governments, coordinating national intervention in regional af-

fairs when necessary, and facilitating dispute resolution both within and between regions.264

The upper house of parliament is responsible for settling disputes between regions, including

border disputes.265

Woredas, kebeles, and other local government units primarily have administrative authority.

They are responsible for implementing policies decided at the national and regional levels,

preparing plans and budgets to communicate their needs upward, overseeing service delivery

(e.g., schools and health facilities), ensuring taxes are collected, and supporting development

activities. Zones and special woredas in the Southern region have their own legislative, execu-

tive, and judicial organs and can choose their own working language, issue laws, and approve

regional constitutional amendments.266

258


CONSTITUTION OF THE FDRE, 1995, arts. 47, cl. 4, 52. 260

CONSTITUTION OF THE FDRE, 1995, arts. 50, cl. 4–5. 261


CONSTITUTION OF THE FDRE, 1995, arts. 78, 80. 263

CONSTITUTION OF THE FDRE, 1995, arts. 5, 39, cl. 2. 264

Proclamation 691/2010, art. 14. 265


Christophe Van der Beken, "Ethiopia: Constitutional Protection of Ethnic Minorities at the Regional Level," Afrika

Focus 20, no. 1–2 (2007): 122.


57

Despite the constitutional division of powers and rhetoric around decentralization, decision

making in Ethiopia remains highly centralized in practice, largely because the EPRDF coalition

controls the bureaucracy and its patronage network extends through every level of govern-

ment. Federal government control over the majority of revenue streams and budget decisions

also contributes to the high level of centralization. Thus, policies made at the national level are

generally replicated at the regional level.267 The EPRDF uses kebele and sub-kebele structures to

extend its influence even down to the level of households, as kebele officials control land ten-

ure and access to basic services.268 (See Systems of Election and Selection.)

Senior members of the national government regularly monitor and intervene in regional af-

fairs, and regional officials depend on the Ministry of Federal Affairs for approval.269 The Minis-

try of Federal Affairs has such influence over regional officials given that the mandate of the

Ministry permits it to intervene in regional affairs when necessary.270 Significantly, the federal

police report to the Ministry and the Ministry oversees security in some states.271 Ethiopian

troops and the intelligence apparatus are also actively deployed throughout the country, an

ongoing federal intervention in the regions.272


The national government raises and controls most of the revenue streams through direct and

indirect taxes.273 The national government can raise revenue from taxes on imports and ex-

ports, licenses, and national-level transportation services.274 Regional governments can raise

revenue from taxes on property, income of farmers and traders, licenses, region-level trans-

portation services, and income from mining, as well as royalties from forest resources in line

with shared powers of taxation with the national government.275 The national and regional

governments can jointly raise revenue from taxes on companies, large-scale mining, and petro-

leum and gas operations.276 Both houses of parliament can decide how to allocate other reve-

nue-raising powers through a two-thirds majority vote in a joint session.277 In practice, the na-

tional government controls approximately 83 percent of revenue through direct and indirect

taxation.278

267

International Crisis Group, “Ethiopia: Ethnic Federalism and Its Discontents,” 17. 268



Proclamation 691/2010, art. 14. 271



World Bank Group, “Ethiopia Public Expenditure Review,” Report No: ACS14541 (2016): 13–18. 274




CONSTITUTION OF THE FDRE, 1995, arts. 99. 278

The World Bank Group, “Ethiopia Public Expenditure Review,” 8, 13–18.


58

The national government transfers significant revenue to regional governments. Between 1993

and 2001, regional governments generated about 18 percent of government revenues but

were responsible for about 35 percent of government expenditures.279 The regions thus are

dependent on transfers from the national government. In addition to formal transfers, the na-

tional government transfers revenue to regional governments through unofficial patronage

networks, infrastructure projects, businesses owned by members of the ruling party, donor-

funded projects, and nationally funded services such as transport, communication, and ener-

gy.280

Assessment

Decentralization often enables political accommodation by bringing governance closer to indi-

viduals and communities and allowing individuals and communities to have greater voice and

influence over governance decisions. Ethnic federalism provides significant constitutional rights

to Ethiopia’s regions and, on paper, Ethiopia’s political structure is highly decentralized. At the

subnational level, ethnic federalism has made governance institutions more ethnically diverse

and representative. For example, rather than being appointed from the center, civil servants

are locally recruited.281

However, in practice, the EPRDF has governed the country in a highly centralized manner since

1991. The EPRDF controls the government from the national to the local level, and there is little

separation between the State and the party. Political power and resources largely flow through

the EPRDF. Additionally, the EPRDF or one of its affiliated parties controls every level of gov-

ernment throughout Ethiopia.

Overall, Ethiopia’s system of ethnic federalism may play a role in keeping the country unified

despite the persistence of violent conflict at the local level. The right to self-determination,

generally, and secession, specifically, has been a critical mechanism for enabling peaceful ac-

commodation of the desires of some nationalities, enabling flexibility within the political system

and offering an alternative to violent conflict.

279

Abu Girma Moges, "An Economic Analysis of Fiscal Federalism in Ethiopia," Northeast African Studies 10, no. 2

(2003): 18. 280

Paulos Chanie, “Clientelism and Ethiopia’s Post-1991 Decentralisation,” The Journal of Modern African Studies 3, no.

45 (2007): 379–381. 281

International Crisis Group, “Ethiopia: Ethnic Federalism and Its Discontents,” 24.


59


Members of the House of People’s Representatives are elected using the first-past-the-post sys-

tem, and the prime minister and president are chosen by parliament. Members of the House of

the Federation are elected by regional councils, and each nationality must be represented. The

EPRDF coalition voluntarily adopted a quota for women candidates in 2004, which successfully

increased women’s representation. However, the 2005 parliamentary elections were the only

genuinely competitive elections, and since that election the EPRDF has prevented elected candi-

dates from opposition parties from taking their seats.

a. System design

Within the executive branch, the prime minister is appointed by the party or coalition with a

majority in the House of People’s Representatives (the lower house of parliament).282 The

prime minister’s term is for the duration of the mandate of the House of People’s Representa-

tives.283 For the presidency, the House of People’s Representatives nominates a candidate, and

a joint session of parliament must approve the candidacy by a two-thirds majority vote. The

president is elected to a six-year term and has a two-term limit.284

Members of the House of People’s Representatives are elected by plurality from single-seat

constituencies (also known as first-past-the-post or FPTP) for five-year terms.285 The constitu-

tion stipulates that there can be no more than 550 members of the house, with at least 20

seats reserved for minority nationalities.286 As of 2016, there were 547 members of the House

of People’s Representatives.287

Members of the House of the Federation (the upper house) are “representatives of Nations,

Nationalities, and Peoples,”288 and as of 2016 there were 153 members.289 Each nationality

must have at least one representative plus “one additional representative for each million of its

population.”290 The constitution specifies that regional councils can elect members of the up-

282


CONSTITUTION OF THE FDRE, 1995, art.72. 284


A single-member constituency is an electoral district from which only one representative is elected to a legisla-

ture or elected body. CONSTITUTION OF THE FDRE, 1995, art. 54, cl. 12, and 532/2007 Amended Electoral Law art. 28. 286

CONSTITUTION OF THE FDRE, 1995, art. 54, cl. 3. 287

Inter-Parliamentary Union, “Ethiopia: Yehizb Tewokayoch Mekir Bete (House of Peoples' Representatives)” (6 Oc-

tober 2015), http://www.ipu.org/parline-e/reports/2107_A.htm. 288


Inter-Parliamentary Union, “Ethiopia: Yefedereshein Mekir Bete (House of the Federation)” (1 March 2016),

http://www.ipu.org/parline-e/reports/2108.htm#last. 290

CONSTITUTION OF THE FDRE, 1995, art. 61, cl. 2.


60

per house or hold direct elections within their constituencies.291 In practice, all regional coun-

cils elect members of the upper house themselves,292 and elections are held every five

years.293At the subnational level, members of regional councils are elected by FPTP for five-year

terms.294 Members of woreda and kebele councils also are directly elected, with the exact

method determined by regional law.295 The size of regional and woreda councils varies by re-

gion,296 but the national government expanded kebele councils from 15 seats to a maximum of

300 seats in 2008.297 Regional, woreda, and kebele administrative heads of government are

elected by their respective legislative councils from among the councils’ members, and execu-

tive council members are appointed by the administrative heads and approved by the legisla-

tive councils.298

In practice, most elections under Ethiopia’s 1995 constitution have not been competitive. The

EPRDF coalition won 95 percent of the vote in the 1995 and 2000 federal and regional parlia-

mentary elections, in part because a number of parties boycotted or withdrew from the elec-

toral process.299 In 2010, the coalition and its affiliates won all but one of the 1,903 seats con-

tested in the regional council elections and all but one of the 545 seats contested in elections

for the House of People’s Representatives.300

The 2005 elections have been the only genuinely multiparty elections to take place in an open

and dynamic political climate that involved substantive debate. For the first time, parties that

ran in opposition to the EPRDF received access to State-owned radio and television and were

permitted to organize large public events in the capital.301 The opposition parties won more

than 30 percent of the seats in the lower house, including almost all the seats in urban are-

as.302 Despite these gains, opposition parties alleged irregularities and protested the results,

claiming they should have won more seats than they did. The government responded with a

violent crackdown in which hundreds of people were killed and tens of thousands arrested,

291


Van der Beken, "Ethiopia," 110. 293

Inter-Parliamentary Union, “Ethiopia,” http://www.ipu.org/parline-e/reports/2108.htm#last. 294

532/2007 Amended Electoral Law, art. 28. 295

532/2007 Amended Electoral Law, art. 29. 296

Serdar Yilmaz and Varsha Venugopal, "Local Government Discretion and Accountability in Ethiopia," International

Studies Program at Georgia State University (2008): 4–5. 297

Lovise Aalen and Kjetil Tronvoll, “The 2008 Ethiopian Local Elections: The Return of Electoral Authoritarianism,”

African Affairs 108, no. 430 (2008): 116. Aalen and Tronvoll cite the number of residents in a kebele as between 1,000

and 3,000, so that a significant percentage of the population of a kebele serves on the council. 298

CONSTITUTION OF THE FDRE, 1995, art.s 49, cl. 3, 92, 93, cl. 2(d), 98, cl. 3, 104, cl. 2(d). 299


Kjetil Tronvoll, “The Ethiopian 2010 Federal and Regional Elections: Re-establishing the One-Party State,” African

Affairs 115, no. 461 (2010): 15. 301

Aalen and Tronvoll, “The 2008 Ethiopian Local Elections,” 112. 302

Jon Abbink, “Discomfiture of Democracy? The 2005 Election Crisis in Ethiopia and its Aftermath,” African Affairs

105, no. 419 (2006): 183–184.


61

including members of the opposition leadership.303 Most opposition representatives subse-

quently did not take their seats.304 The outcome of all elections in Ethiopia under the 1995

constitution have resulted in members of the EPRDF and affiliated parties occupying the vast

majority of elected positions within national and local governments.


National political parties need to have at least 1,500 founding members. Of these founding

members, at least 40 percent must be residents of the same region, and the rest must be res-

idents of at least four different regions. Regional political parties need to have at least 750

founding members, more than 60 percent of whom must be from the same region.305 Candi-

dates can run as independents or through political parties.

The EPRDF is a national coalition made up of four regional parties based on nationality, each of

which controls one of the four core regions: Tigray, Amhara, Oromo, and Southern. The other

regions are also controlled by nationality-based regional parties that are not members of the

EPRDF but are closely affiliated with it. The boundary between the EPRDF and the State is

blurred, and regional officials are largely accountable to national-level party officials rather than

the people of their region, woreda, or kebele.306

A number of factors promote party loyalty within the EPRDF over accountability to constitu-

ents. Upon its military victory over the Derg in 1991, the EPRDF took control of vital sectors and

businesses in the Ethiopian economy.307 Additionally, the State owns all land, which the EPRDF

has redistributed periodically.308 Finally, party membership or close party ties are requirements

for public sector employment and State-sponsored education.309 Taken together, these factors

result in significant overlap between the party, the State, and the economy.


The upper house is specifically designed to ensure representation of each nationality in the

legislature, and the constitution reserves seats in the lower house for minority nationalities.

Electoral law does not include mechanisms to ensure representation of other historically un-

derrepresented groups in the legislature or executive, such as women or religious minori-

ties.310 However, the EPRDF voluntarily adopted a 30 percent quota for women candidates in

303

Abbink, “Discomfiture of Democracy?” 176 304

Abbink, “Discomfiture of Democracy?” 176. 305

Proclamation 573/2008, arts. 5, 6. 306

Aalen, “Ethnic Federalism and Self-Determination,” 250–251. 307




Quota Project, “Ethiopia” (22 April 2015), http://www.quotaproject.org/uid/countryview.cfm?country=73#party.


62

2004, which successfully increased women’s representation. Following the 2015 elections,

women held 38.8 percent of seats in the lower house and 32 percent in the upper house.311

Assessment

There is a significant disconnect between the design of Ethiopia’s system of election and selec-

tion and the way in which the system has played out in practice. A number of mechanisms are

designed to increase inclusion and equity of decision-making power: the representation of

each of the country’s nationalities within the House of the Federation, the reservation of seats

within the House of the People’s Representatives for minority nationalities, and the cross-

regional buy-in required to establish national and regional political parties all promote political

accommodation.

Yet the EPRDF political coalition has exerted significant influence over Ethiopia’s electoral sys-

tem since 1991. A positive effect of this is the voluntary quota for women the EPRDF instituted

that has successfully increased women’s representation. However, although opposition parties

won significant numbers of seats as the result of the 2005 elections, the EPRDF effectively pre-

vented candidates from serving in office. The EPRDF has exerted influence over institutions

within the system itself, as well as controlling means of rewarding or punishing voters for their

preferences through access to resources and opportunities, effectively curtailing the ability of

the electoral system from accommodating different constituencies.

3. EXECUTIVE BRANCH

The prime minister is the chief executive, chairman of the council of ministers, and commander

in chief of the Armed Forces. Constitutionally, the prime minister is responsible to the lower

house of parliament. In practice, parliament ceded aspects of this executive oversight role in a

2008 bill. The EPRDF has dominated parliament since independence and has controlled the ex-

ecutive as a result.


Ethiopia has a parliamentary system in which the executive is responsible to the legislature.

The executive branch includes a president, a prime minister, and a council of ministers. The

president serves as head of State, but has primarily ceremonial functions,312 while the prime

minister and council of ministers hold most executive powers.313

311

International Parliamentary Union, “Ethiopia:Yehizb Tewokayoch Mekir Bete” 312

CONSTITUTION OF THE FDRE, 1995, arts.69, 71. 313

CONSTITUTION OF THE FDRE, 1995, art. 72.


63

The prime minister is the chief executive, chairman of the council of ministers, and commander

in chief of the Armed Forces.314 The prime minister appoints members of the council of minis-

ters who are approved by the lower house.315 The prime minister also nominates commission-

ers, the president and vice president of the Federal Supreme Court, and the auditor general

(approved by the lower house);316 ensures implementation of laws and policies;317 and super-

vises foreign policy.318 To date, the prime minister also has been chairman of the EPRDF, mean-

ing that most important decisions take place through the prime minister’s office and EPRDF

executive committee.319 Meles Zenawi served as prime minister from 1995 until his death in

2012, at which time Hailemariam Desalegn took office.

The powers of the council of ministers include declaring a state of emergency in cases of “ex-

ternal invasion, a breakdown of law and order…, a natural disaster, or an epidemic.”320 A state

of emergency gives the council of ministers “all necessary power to protect the country’s peace

and sovereignty, and to maintain public security, law and order.”321 It also allows the council of

ministers to suspend many of the political and democratic rights contained in the constitu-

tion.322 A state of emergency must be approved by the lower house with a two-thirds majority

in order to take effect.323 The council of ministers and lower house have declared a state of

emergency at various times. (See Public Participation.)

Regions, woredas, and kebeles all have administrative heads of government and executive

councils.324


Constitutionally, the prime minister and council of ministers are responsible to the lower

house, which can “take decisions or measures it deems necessary” regarding the power of the

executive.325 This type of provision is typical of parliamentary systems and is considered a key

‘check and balance’ between the branches of government since the executive is accountable to

the lower house of the legislature. The executive also is accountable to the general public by

314


CONSTITUTION OF THE FDRE, 1995, art. 74 , cl. 2. 316




As of 2009, the EPRDF executive committee consisted of the prime minister, deputy prime minister, a number of

ministers and special advisers, the executives of four provinces (Amhara, Oromia, Tigray, and Southern) and Addis

Ababa, and the heads of five regional bureaus. International Crisis Group, “Ethiopia: Ethnic Federalism and Its Dis-

contents.” 320

CONSTITUTION OF THE FDRE, 1995, art. 93, c. 1(a). 321

CONSTITUTION OF THE FDRE, 1995, art. 93, cl. 4(a). 322

CONSTITUTION OF THE FDRE, 1995, art. 93, cl. 4 (b-c). 323

CONSTITUTION OF THE FDRE, 1995, arts. 93, cl. 2(a). 324

CONSTITUTION OF THE FDRE, 1995, arts. 56, 90, 101, 103. 325

CONSTITUTION OF THE FDRE, 1995, art. 55, cl.18.


64

extension, through constituencies’ representatives in the lower house. The constitutional ability

of the lower house to make decisions on or alter the power of the executive is a mechanism

meant to ensure accountability of the executive to various stakeholders within the political sys-

tem.

However, the lower house significantly redefined its relationship with the executive with the

passage of the bill “Definition of Powers and Duties of the Executive Organs of the Federal

Democratic Republic of Ethiopia Proclamation" (No. 471/2005) in September 2008.326 Among a

number of provisions, the bill established 20 ministries327 and specified that the individual min-

isters are accountable to the prime minister and council of ministers.328 With the passage of

this bill, the legislature ceded substantial oversight functions to the executive.329

At the subnational levels, administrative heads of government and their executive councils are

accountable to the respective legislative councils.330

Assessment

Parliamentary systems can promote inclusivity within the executive, since members of the ex-

ecutive typically are drawn from a range of political representatives in the legislature.331 As in

Ethiopia, the executive may be accountable directly to the legislature and to the general public

through their legislative representatives.

Yet the executive branch in Ethiopia is not particularly representative of diverse interests in

practice. The EPRDF coalition has dominated parliament since independence, limiting the de-

gree of inclusivity that is possible within executive institutions. The ERPDF has controlled the

executive as a result. Recent shifts in oversight mechanisms away from the legislature to other

offices within the executive branch have further diminished equity of decision-making power in

Ethiopia.

326

Jon Abbink, “The Ethiopian Second Republic and the Fragile ‘Social Contract’,” Africa Spectrum 44, no. 2 (2009): 16. 327

Proclaimation 471/2005, Part 3, art. 9. 328

Proclaimation 471/2005, Part 3, art. 11. 329

Abbink, “The Ethiopian Second Republic,” 16. 330

CONSTITUTION OF THE FDRE, 1995, arts. 56, cl. 2, 93, cl. 1, 101, cl. 2. 331

Benjamin Reilly, “Government Structure and Electoral Systems”( New York University, Center on International

Cooperation, 2003), http://cic.nyu.edu/sites/default/files/e20govtstructureelectoralsystemsreilly.pdf.


65


The Ethiopian legislature is composed of the House of People’s Representatives and the House of

the Federation. The House of the Federation represents the different nationalities and oversees

implementation of ethnic federalism. However, the House of the Federation has little influence

on day-to-day policy making, and both bodies are controlled by the EPRDF. In 2005 the House of

People’s Representatives passed new rules limiting debate on legislation.


Ethiopia’s national parliament has two houses. The House of People’s Representatives (the

lower house) is responsible for electing the prime minister, legislating in most of the areas re-

served for the national government, and raising revenue. It also ratifies international agree-

ments concluded by the executive, approves states of emergency, and approves executive ap-

pointments, including members of the council of ministers, national judges, commissioners,

and the auditor general. It can question the prime minister and other officials, investigate the

executive’s conduct, and, at the request of one-third of its members, discuss and take action

on executive powers.332

The House of the Federation (the upper house) plays an

unusual role in that it straddles the judicial and legislative

branches. The House of the Federation does not review

legislation passed by the House of People’s Representa-

tives, but has authority over issues related to Ethiopia’s

nationalities. It decides on issues related to the rights of

nationalities to self-determination, including the right to

secession, and is responsible for promoting the equality

and unity of Ethiopia’s peoples.333 It can resolve disputes

between regions, including border disputes, and can or-

der national intervention in a region if the constitutional

order is threatened. It also decides on the formula for

distributing national revenue to regional governments

332

CONSTITUTION OF THE FDRE, art. 55. 333

Strengthening the equality and unity of Ethiopia’s peoples includes building the capacity of regions to implement

their budgets, promoting balanced socioeconomic development among regions, distributing fairly infrastructure

among regions, and promoting cooperation among regions. CONSTITUTION OF THE FDRE, 1995, art. 62; Proclamation

251/2001, art. 37.

Prospect for Political Accommoda-

tion: House of the Federation

The upper house of parliament, the

House of the Federation, aims to ac-

commodate Ethiopia’s nationalities at

the national level by representing

them in proportion to their popula-

tion. The House of the Federation de-

cides on issues related to self-

determination, resolves disputes be-

tween regions, and decides on the

formula for revenue transfers to the

regions.


66

and the boundaries of electoral constituencies.334 The House of the Federation also interprets

the constitution when the Council of Constitutional Inquiry forwards cases.335

However, the House of the Federation has little influence on day-to-day policy making. It meets

only twice a year and has few checks on the House of People’s Representatives or the execu-

tive. It is also controlled by the EPRDF, and some have therefore called into question its ability

to impartially interpret the constitution.336

Regions, woredas, and kebeles all have legislative councils that are each level’s primary govern-

mental body.337


Both houses of parliament make most decisions by majority vote. Approval by a two-thirds ma-

jority of a joint session of both houses of parliament is required for electing the president, ap-

proving a state of emergency, assigning revenue-raising powers not specified in the constitu-

tion, and approving constitutional amendments.338

Following opposition gains in the 2005 elections, the lower house of parliament passed new

rules requiring support from 51 percent of parliamentarians before an initiative could be de-

bated (it had previously been 20 percent) and allowing for the removal of members who use

“insulting and defamatory language.”339 This legislation is perceived as intending to restrict op-

position parties’ influence.

Assessment

The House of the Federation reflects Ethiopia’s system of ethnic federalism at the national level

by providing representation for nationalities. It also plays a significant role in overseeing the

implementation of ethnic federalism, including resolving border disputes and determining the

formula for allocating revenue to regional governments.

However, a number of factors combine to limit equity of decision making in practice. First, the

House of the Federation meets only twice a year and has been controlled by the EPRDF. Sec-

ond, the regulations passed by the House of the People’s Representatives in the wake of the

2005 elections severely limit debate on legislation. Taken together, these factors significantly

334

CONSTITUTION OF THE FDRE, 1995, arts. 62, 103. Proclamation 251/2001, arts. 32, 33. 335

CONSTITUTION OF THE FDRE, arts. 62, 83; Assefa Fiseha, “Constitutional Adjudication in Ethiopia: Exploring the Expe-

rience of the House of Federation (HoF),” Mizan Law Review 1, no. 1 (2007): 18–19. 336


CONSTITUTION OF THE FDRE, 1995, arts. 49, 86, 97. 338

CONSTITUTION OF THE FDRE, arts. 59, 64, 70, 93, 99, 105.. 339

Abbink, “Discomfiture of Democracy,” 185.


67

restrict the institutional capacity of the legislature and undermine the legislature’s representa-

tion of diverse interests and equity of decision making.


While numerous avenues for public participation exist within Ethiopia’s political system in theo-

ry, EPRDF policies have severely curtailed such opportunities in practice. The EPRDF effectively

has closed space for debate at all levels of government by occupying key positions and actively

targeting political opponents.


The constitution includes a number of provisions that speak to public participation in civic life,

from the community level to the national level. The constitution states that “all persons have

the right to participate in national development and, in particular, to be consulted in respect to

projects affecting their community.”340 The constitution also specifically gives women the right

to “full consultation in the formulation of national development policies, the designing and exe-

cution of projects, and particularly in the case of projects affecting the interests of women.”341

The constitution also states that “adequate power shall be granted to the lowest units of gov-

ernment to enable the people to participate directly in the administration of such units.”342

Yet in practice, the EPRDF has limited the freedoms of expression and of organization and

suppressed opposition, particularly since the 2005 elections. Since the EPRDF’s political reach

extends down to the kebele level, political dialogue and debate even in local forums is stifled.343

After approximately a year characterized by protests against the government, and both killings

and detentions attributed to State security forces, a state of emergency was declared through-

out the country on 9 October 2016.344 The prime minister asserted that the state of emergency

was necessary for peace, stability, and security within the country.345 The declaration included

restrictions on freedom of expression, restrictions on peaceful assembly, and the deployment

340


CONSTITUTION OF THE FDRE, 1995, art.35. 342


International Crisis Group, “Ethiopia: Ethnic Federalism and Its Discontents,” 18–22. 344

Human Rights Watch, “Legal Analysis of Ethiopia’s State of Emergency” (30 October 2016),

https://www.hrw.org/news/2016/10/30/legal-analysis-ethiopias-state-emergency. 345

“Ethiopia declares a state of emergency,” euronews (10 October 2016),

http://www.euronews.com/2016/10/10/ethiopia-declares-a-state-of-emergency.


68

of the army throughout the country.346 The restrictions were eased in March 2017 and the

state of emergency was lifted on 4 August 2017.347

b. Referendums

Ethiopians have the right to recall elected officials and to petition the government.348 The con-

stitution provides for referendums if a nationality wants to secede from Ethiopia or form a new

region within Ethiopia.349 In cases of border disputes between regions within Ethiopia, inhabit-

ants of the disputed area vote in a referendum to decide which region to be part of.350 Refer-

endums can also be held “to assess public interest or make decisions.”351

Assessment

In theory, numerous avenues for public participation exist within Ethiopia’s political system,

such as the abilities to recall elected officials, secede, and create regions through referendums

and the right to participate in development policy creation. However, EPRDF policies have se-

verely curtailed such opportunities in practice. The EPRDF effectively has closed space for de-

bate at all levels of government by occupying key positions and actively targeting political op-

ponents.


There are no formal legislative provisions for the incorporation of traditional leaders into formal

governance; however, the EPRDF has incorporated customary authorities into government and

promoted traditional conflict resolution mechanisms. Ethiopia has a system of Sharia courts that

parallel the national and regional court systems. However, the accommodating potential of tra-

ditional leaders and practices is limited by the perception that the EPRDF uses traditional leaders

and customary practices to extend its own control.

346

Human Rights Watch, “Legal Analysis.” 347

Aaron Maasho, “Ethiopia Lifts Emergency Rule Imposed Last October after Months of Unrest,” Reuters (4 August

2017), https://www.reuters.com/article/us-ethiopia-politics/ethiopia-lifts-emergency-rule-imposed-last-october-after-

months-of-unrest-idUSKBN1AK0QV. 348



In referendums on border disputes, the right to vote is extended to those who have lived in the disputed area

more than five years or “whose displacement from the disputable area is proved to be due to reason related to the

dispute.” Proclamation 251/2001, arts. 29, 30. 351

Proclamation 532/2007, art. 32.


69


While there are no formal provisions related to traditional and customary arrangements at the

executive level, the EPRDF has partially incorporated customary authorities into the State at

the local level. Under the EPRDF, the number of recognized clan and tribal leaders has multi-

plied, and the government often encourages these leaders to use traditional mechanisms for

resolving local-level conflicts. However, although traditional leaders and religious authorities

have had some scope to mediate conflicts over minor matters, the government controls the

proceedings.352 Elders who participate in conflict resolution proceedings are often well com-

pensated by the government for their participation, and thus traditional leaders are often seen

as handpicked or co-opted by the government, reducing their legitimacy.353

b. Judicial activities

The constitution provides for a system of Islamic Sharia courts that parallels the national and

regional court systems.354 There are three levels of Sharia courts: First-Instance Court of Sharia,

High Court of Sharia, and Supreme Court of Sharia. The kadis (judges of Islamic law) for these

courts are recruited by the Supreme Council for Islamic Affairs and approved by the Judicial

Administration Commission, which also oversees secular courts. Sharia courts follow the same

rules of procedure as the secular courts and are staffed and funded by the government. Deci-

sions from Sharia courts cannot be appealed to the secular court system, and vice versa.355 For

Ethiopia’s Muslims, the Sharia courts have jurisdiction over questions of marriage, family, and

inheritance. For their jurisdiction to apply, all parties to the dispute must give their consent.356

The constitution allows the lower house and regional councils to “establish or give official

recognition to religious and customary courts.”357 In addition to the national courts, all the re-

gions have recognized regional Sharia courts.358

Challenges faced by Sharia courts include the ambiguity of determining whether parties con-

sent to their jurisdiction, potential conflict between the civil procedures Sharia courts are re-

352

Abbink, “Ethnic-Based Federalism and Ethnicity in Ethiopia,” 603. 353

Tobias Hagmann and Alemmaya Mulugeta, “Pastoral Conflicts and State-Building in the Ethiopian Lowlands,” Afri-

ka Spectrum 43, no. 1 (2008): 26–28. 354

About one-third of Ethiopia’s population is Muslim. Sharia courts operated unofficially in Ethiopia for many years,

were promoted by the Italians during their brief occupation of the country from 1936 to 1941, and were officially

recognized by the Ethiopian government in 1942. Mohammed Abdo, “Legal Pluralism, Sharia Courts, and Constitu-

tional Issues in Ethiopia,” Mizan Law Review 5, no. 1 (2011): 77–79. 355

Decisions of Sharia courts can, however, be appealed to the House of the Federation if they relate to questions

over interpretation of the constitution. Abdo, “Legal Pluralism, Sharia Courts, and Constitutional Issues in Ethiopia,”

91–93. 356

Proclamation 188/1999, arts. 3–5, 17, 19. 357


Girmachew Alemu Aneme, “Introduction to the Ethiopian Legal System and Legal Research,” Hauser Global Law

School Program—GlobaLex (2010), http://www.nyulawglobal.org/Globalex/Ethiopia.htm#_edn55.


70

quired to follow and Islamic law, potential inconsistencies in interpretation of Islamic law, and

potential conflict with constitutional provisions related to human rights and women’s rights.359

Assessment

The EPRDF has fostered a climate of inclusion through traditional and customary arrange-

ments by recognizing traditional leadership and promoting traditional mechanisms of conflict

resolution. However, the perception that the EPRDF appoints and compensates elders to ex-

tend its own control limits the perceived legitimacy potential of both traditional leaders and the

customary practices, such as conflict resolution, in which they engage. In addition, the potential

for inclusion is limited by the fact that virtually all traditional leaders recognized by the gov-

ernment, such as Somali-Ethiopian elders, are men.360

Conclusion

Ethiopia’s system of ethnic federalism is a unique approach to political accommodation. On

paper, the system is highly successful in devolving powers to independent regions, enabling

different ethnic groups the right to self-determination, self-government, and cultural and lin-

guistic rights. While some analysts highlight the potential for ethnic federalism to exacerbate

ethnic conflict, such tensions have been somewhat managed in Ethiopia even though low-

intensity conflict continues in some regions.

However, the future stability of the political system is unclear. In practice, Ethiopia’s current po-

litical system has been dominated by a single coalition, the EPRDF, which has governed

through highly centralized policies and repressive practices. Many of the potentially accommo-

dating mechanisms within the political system are undercut by the EPRDF’s control of political

institutions and resources. When considered together, ethnic federalism coupled with EPRDF

control of the State have resulted in a political system that has a number of accommodating

mechanisms that have not been fully used.

359

Abdo, “Legal Pluralism, Sharia Courts.” 360

See Tobias Hagmann, “Bringing the Sultan Back In: Elders as Peacemakers in Ethiopia's Somali Region,” in State

Recognition and the Democratization of Sub-Saharan Africa: A New Dawn for Traditional Authorities? eds. Lars Buur and

Helene Maria Kyed (Zurich, Switzerland: Basingstoke, 2007): 35,

http://www.zora.uzh.ch/41735/2/Tobias_Hagmann_Jan151_TH_final.pdf, and Kjetil Tronvoll and Tobias Hagmann,

“Introduction: Traditional Authorities and Multi-Party Elections in Ethiopia ,” in Contested Power in Ethiopia: Traditional

Authorities and Multi-Party Elections, eds. Kjetil Tronvoll and Tobias Hagmann (Leiden, the Netherlands: Koninklijke

Brill NV): 9.


71

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HOW GOVERNANCE FUNCTIONS | INDIA

74

INDIA

Executive Summary

This case study focuses on India’s governance arrangements analyzed through the lens of Po-

litical Accommodation. Political Accommodation considers how governance options can recon-

cile different political interests to move society toward sustainable peace. The case study ex-

amines governance provisions in the constitution and relevant legislation across six focal are-

as: 1) political structure; 2) systems of election and selection; 3) executive branch; 4) legislative





As one of the most linguistically, religiously, and ethnically diverse countries in the world, India

offers many examples of how to maintain stability through political accommodation. India has

a multilevel, asymmetric federal system in which state boundaries are primarily based on lin-

guistic groups. The national government has granted varying degrees of political and fiscal au-

tonomy to different regions and groups, and some tribal areas within states also have limited

autonomy. India’s legal system incorporates distinct provisions designed to protect and ad-

vance the interests of certain minority groups. There are many mechanisms for accommodat-

ing traditionally disadvantaged groups and regions, including reserved seats in legislatures, the

civil service, and educational institutions for certain castes and tribes; reserved seats in local

legislatures for women, resulting in 46 percent women’s representation; guarantees of educa-

tional autonomy to linguistic and religious minorities; and the continued use of traditional jus-

tice systems in some tribal areas. India maintains separate personal laws for Hindus, Muslims,

Christians, Parsees, and Jews to try to accommodate the main religious minority groups.

Table 6—Accommodating and Less Accommodating Aspects in India


INDIA

Asymmetric and linguistic federalism

Subnational fiscal autonomy

Women’s and minority quotas

Separate personal laws for different religions

Tribal areas with tribal justice systems

Significant numbers appointed or indirectly

elected



75

Background

With a population of about 1.3 billion, India is the second most populous country in the world

and the largest democracy.361 It encompasses numerous linguistic, ethnic, and religious minori-

ties, as well as a caste system and tribal structures that remain socially relevant. During British

colonial times, rulers established an electoral system to try to accommodate this diversity, with

separate electorates and reserved seats for a wide range of groups, including certain castes,

Muslims, Sikhs, Indian Christians, Anglo-Indians, Europeans, and women.362 When India gained

independence in 1947, it was partitioned between Hindu-majority India and Muslim-majority

Pakistan, resulting in mass displacement and hundreds of thousands of deaths. Some blamed

this partition on the system of separate electorates, which they accused of exacerbating divi-

sions.363

India’s 1949 constitution abandoned the separate electorates and put in place a secular, fed-

eral system that attempted to protect the rights of linguistic, ethnic, and religious minorities.

Although India has remained relatively stable as a whole, the national government has come

into regular conflict with linguistic, ethnic, and religious groups seeking independence, auton-

omy, or development. India’s federal system has evolved over time in response to these con-

flicts. The most significant change came in 1956, when state boundaries were redrawn around

the major linguistic groups. In the years since, more linguistic groups have gained their own

states. In addition, several states have gained increased autonomy, including the state of Jam-

mu and Kashmir, although the actual degree of autonomy they have asserted has varied over

time.

India’s National Congress Party has been the dominant political force for most of the period

since India’s independence. The nature of Congress Party rule has varied significantly from

administration to administration, initially promoting policies aimed at increasing accommoda-

tion of minority groups followed by a period of centralization and authoritarianism in the

1970s. Since the 1980s, the influence of regional parties has grown. The Hindu nationalist Bha-

ratiya Janata Party, which has often criticized laws related to minority groups, has gained influ-

ence in recent years, including a significant victory in the 2014 national parliamentary elections.

361

PTI, “India's population to surpass that of China around 2024: UN,” Times of India (21 June 2017),

https://timesofindia.indiatimes.com/india/indias-population-to-surpass-that-of-chinas-around-2024-

un/articleshow/59257045.cms. 362

Government of India Act, 1935, First Schedule, Table of Seats. 363

Susanne Hoeber Rudolph and Lloyd I. Rudolph, “Living with Difference in India: Legal Pluralism and Legal Univer-

salism in Historical Context,” The Political Quarterly 71, no. 1 (2000): 21.


76













3. Executive branch






the Strands.


India has used specific mechanisms that promote accommodation of different interests.



India is a relatively centralized federal state. While state governments are granted many powers

and significant fiscal autonomy, national authority supersedes state authority. India’s federal

system is asymmetric: union territories have less autonomy than states, and some states have

more autonomy than others. In addition, autonomous districts and regions provide further au-

tonomy to certain groups within states. India’s complex political structure has been, for the most

part, successful in accommodating a wide variety of interests in a large territory.

364




77

a. Structure

India is a federal State365 where the national government has significant oversight over subna-

tional governance. India’s structure consists of 29 states and seven union territories.366 States

are subdivided into panchayats (village councils), municipalities (city councils), and autonomous

districts and regions.367 (See Figure 7.) The national parliament can divide or merge states and

alter their names and boundaries.368 Except for Jammu and Kashmir, states do not have sepa-

rate constitutions. With a few exceptions, states do not have a role in amending India’s consti-

tution.369

Figure 7—India’s Federal Structure

365

The constitution officially labels India a “Union of States.” INDIA CONST., 1950, art. 1. 366

Since 1956, the national parliament has increased the number of states from 14 to 29, mostly by dividing existing

states—often a highly contentious process. 367

INDIA CONST., 1950, art. 243, Sixth Schedule. 368

Non-binding consultation with the state legislature is required. INDIA CONST., 1950, art. 3. 369

Amendment of certain provisions requires support from both the national parliament and at least half of all state

legislatures. Provisions requiring support from states include the election of the president, powers of national and

state executives, establishment of the Supreme Court and high courts, distribution of legislative powers between

the national parliament and state legislatures, lists of powers reserved for national and state governments, and rep-

resentation of states in the national parliament. INDIA CONST., 1950, art. 368.


78

At the national level, India is governed by a bicameral legislature, a president who serves as

head of State, and a prime minister who serves as head of government. The legislature is com-

posed of the Council of States, an upper house that represents states’ interests, and the

House of the People, a lower house that represents the public at large.

States have elected legislative assemblies and governors appointed by the president. Most

state legislatures are unicameral, although some have both an upper and lower house.

Figure 8—India’s Political Structure

The seven union territories are parallel to states in the federal hierarchy but fall under direct

national control. Therefore, most union territories do not have their own executive or legisla-

tive bodies. (See Political Structure—Division of powers.) Union territories were classified as such

for reasons of strategic importance, cultural particularity, or administrative efficacy.370 The na-

tional parliament has the power to form new union territories from existing states, turn union

territories into states, or merge union territories with existing states.371 As a result, the list of

union territories has fluctuated over time.372

370

Sudhir Kumar, Political and Administrative Setup of Union Territories in India (New Delhi: Mittal Publications, 1991). 371

INDIA CONST., 1950, art. 3. 372

Of the seven current union territories, one (the National Capital Territory of Delhi) has always been a union terri-

tory.


79

Since 1992, India’s constitution has provided for

additional levels of government below states and

union territories: panchayats and municipalities.373

There are multiple sublevels within each of these.

Within states, there are areas that encompass

scheduled castes and tribes, and India’s constitu-

tion contains separate provisions for the admin-

istration of these areas.374 Depending on the state,

these areas may be governed as ‘scheduled areas’

or ‘tribal areas’. Most states have scheduled areas,

which generally encompass one predominant

scheduled tribe and fall under state and national

executive authority.375 In four states in Northeast

India, tribal areas are autonomous districts and re-

gions.376 Unlike scheduled areas, autonomous dis-

tricts and regions have autonomous councils with a

wide range of powers. (See Political Structure—

Division of powers: Between National/State Govern-

ments and Scheduled Areas/Autonomous Districts.)


India’s federal structure is asymmetric, meaning

that specific subnational governments are granted

different levels of political, administrative, and fiscal

power than others. This asymmetry resulted from

groups rejecting the status quo because they felt it

did not take account of their interests, which the national government has addressed through

a range of approaches: creating new states with the same powers as existing states;377 keeping

373

As of 2010, India had approximately 250,000 panchayats and municipalities with a combined total of three million

elected representatives. Finance Commission of India, Report of the 13th

Finance Commission (2010–2015), 2010, art.

10.2. 374

Scheduled castes and tribes are historically disadvantaged castes and tribes, described in the constitution. The

president and the national parliament define which castes and tribes are ‘scheduled’. Scheduled tribes generally

refers to ‘untouchables’, although art. 17 of the constitution officially abolished untouchability. India has over 700

scheduled tribes, constituting 8.6 percent of the total population and living in about 15 percent of the total area.

INDIA CONST., 1950, art. 342 and Ministry of Tribal Affairs, Annual Report: 2015–2016, Government of India, Dec 2015, 29–30. 375

Ultimate authority falls to the national executive. INDIA CONST., 1950, art. 339, Fifth Schedule art. 2. 376

These states are Assam, Meghalaya, Tripura, and Mizoram. Autonomous districts may be divided into the smaller

subunits of autonomous regions. INDIA CONST., 1950, Sixth Schedule art. 1. 377

For example, in 2014 the government created the state of Telangana (formerly part of the state of Andhra Pra-

desh) following a prolonged movement demanding separation.


Asymmetric Federalism

India’s federal system is asymmetric to try to

accommodate different state interests. Sev-

eral states operate under special constitu-

tional provisions that grant them greater

autonomy.

The Muslim-majority state of Jammu and

Kashmir is granted special constitutional

status, which gives it considerably greater

autonomy than other states. Various consti-

tutional provisions also provide somewhat

more autonomy to the heterogeneous states

of Northeast India.

Union territories, which are parallel to states

in the federal structure, also demonstrate

asymmetry. These territories are directly

administered by the national government

and therefore have significantly less auton-

omy than states.

These horizontal differences in power and

authority, combined with linguistic federal-

ism, attempt to deliver stability and prevent

regional conflict in an incredibly large and

diverse state. However, such distinctions can

also reinforce divisions across different

groups.


80

states intact but providing constitutional safeguards to particular geographical areas within

those states;378 granting additional authority to some state legislative councils379 or gover-

nors;380 granting additional authority to the national executive over certain geographical areas

of some states;381 and establishing a special legislative committee382 or special regional coun-

cil383 to ensure the representation of certain geographical areas in the state legislative assem-

bly. Most of these asymmetric provisions apply to the states of Northeast India, which are eth-

nically, culturally, and religiously distinct from much of the rest of the country. Aside from these

states and Jammu and Kashmir, all other states in India have relatively symmetric powers; the

national government has used linguistic federalism rather than asymmetric federalism to ad-

dress most regional conflicts.384

While provisions on asymmetry aim to protect states, or regions within states, on the basis of

being culturally distinct or historically disadvantaged, the history of unrest in many of these

same states has sometimes led to decreased autonomy. For example, constitutional amend-

ments have allowed greater national intervention in the majority-Sikh state of Punjab following

unrest beginning in the 1980s.385 In seven states in Northeast India, the governor or the na-

tional government can declare all or any part of the state to be a ‘disturbed area’; this designa-

tion gives the Armed Forces a wide range of powers, including the use of force against illegally

assembled or armed persons and to search and arrest without warrants.386 This law has come

378

For example, in 1973, the national parliament amended the constitution to provide for equitable education, em-

ployment, and civil service appointment in certain parts of Andhra Pradesh. The constitution (Thirty-Second

Amendment) Act, 1973. INDIA CONST., 1950, art. 371D. 379

In Nagaland and Mizoram, the constitution (per amendments in 1963 and 1987, respectively) bans the national

parliament from legislating over certain traditional and customary practices and land ownership without the consent

of the legislative assembly. INDIA CONST., 1950, arts. 371A, 371G. 380

In Nagaland, the constitution grants the governor “special responsibility with respect to law and order” and the

power to block acts of the national parliament or the state legislature from applying to the Tuensang district. INDIA

Const., 1950, art. 371A. In Sikkim, the constitution grants the governor “special responsibility for peace and for an

equitable arrangement for ensuring the social and economic advancement of different sections of the population.”

INDIA CONST., 1950, art. 371F. 381

In Manipur, the constitution (per an amendment in 1972) grants the national executive the power to direct the

state in administering the culturally distinct “Hill Areas.” INDIA CONST., 1950, art. 371C. 382

In Assam and Manipur, the constitution (per amendments in 1969 and 1972, respectively) allows the president to

constitute a special committee in the state legislative assembly for members elected from certain regions. INDIA

CONST., 1950, arts. 371B, 371 C. 383

In Nagaland, the constitution (per an amendment in 1963) allows the governor to constitute a regional council

tasked with electing representatives from that region to the state legislative assembly. INDIA CONST., 1950, art. 371A.

Representation of the People Act, 1950 art. 7. 384

Louise Tillin, “United in Diversity? Asymmetry in Indian Federalism,” Publius: The Journal of Federalism 37, no. 1

(2006): 47–48. 385

INDIA CONST., 1950, art. 356. 386

This law originally applied only to Assam and Manipur but has since been extended also to include Arunachal

Pradesh, Meghalaya, Mizoram, Nagaland, and Tripura. The Armed Forces (Special Powers) Act, 1958, arts. 3, 4.


81

under national and international condemnation for potential human rights violations, and the

ministry committee responsible for reviewing it in 2004 recommended its repeal.387

The following sections describe the division of powers between national and state govern-

ments; the national government and the state of Jammu and Kashmir; the national govern-

ment and union territories; state and local governments; and national/state governments and

scheduled areas/autonomous districts.

Between National and State Governments

Powers exclusive to the national government include defense, foreign affairs, constitution, and

organization of the Supreme Court and High Court, transportation, commerce, banking, and oil

resources. Powers exclusive to the states include police, public order, public health, agricul-

ture, water supply, land rights, industry, and mines and mineral development. Powers shared

between the national and state governments include lower-level courts, social security, and

education. The national government assumes all powers not explicitly listed in the constitu-

tion.388

Overall, national authority supersedes state authority. If national and state laws are incon-

sistent, national law prevails.389 State governors are appointed by the president and can send

laws passed by state legislative assemblies to the president for consideration.390 The national

parliament can override certain state powers. For example, although states can regulate indus-

try, mines, and mineral development, the national parliament can regulate these areas if it de-

clares this to be “expedient in the public interest.”391

The national government has several avenues for broadly assuming state powers. If deter-

mined to be “necessary or expedient in the national interest,” the Council of States can declare

by a two-thirds majority of members present and voting that a service is an ‘all-India service’

and place the regulation of that service under the authority of the national parliament.392 By a

two-thirds majority and based on ‘the national interest’, the Council of States can also tempo-

rarily allow the national parliament to legislate in any areas specifically reserved for states.393

The national government has used this power to regulate civil servants, police, and forestry of-

ficials who would otherwise fall under state authority. Attempts to regulate additional state

387

Ministry of Home Affairs, Report of the Committee to Review the Armed Forces (Special Powers) Act, 1958, 2004, 75–75. 388

A series of constitutional amendments since 1956 has reduced the number of state powers from 66 to 61 while

increasing the number of national powers from 97 to 99. H. M. Rajashekara, “The Nature of Indian Federalism: A

Critique,” Asian Survey 37, no. 3 (1997): 252; INDIA CONST., 1950, arts., 245, 246, 248, Seventh Schedule. 389

INDIA CONST., 1950, art. 251, 254. 390

INDIA CONST., 1950, arts. 200, 201. 391

INDIA CONST., 1950, Seventh Schedule. 392

INDIA CONST., 1950, art. 312. 393

INDIA CONST., 1950, art. 249.


82

services in 1963 failed when the states refused to cooperate.394 The national parliament has

used its power to assume specific state powers three times—in 1950, 1951, and 1986—each

time temporarily and to address a specific problem.395

Moreover, the president (with national parliamentary approval) can proclaim three different

types of emergency that grant additional powers to the national government.396 First, in a na-

tional emergency, the president can issue directives to state governors and the national par-

liament can assume state powers.397 (See Executive Branch.) Second, in a state emergency, the

president can impose ‘president’s rule’. Under president’s rule, the national executive and the

national parliament can assume any state powers, and the president can temporarily suspend

constitutional provisions related to state institutions or authority.398 Third, in a financial emer-

gency, the president can extensively intervene in state finances.399

The national executive has repeatedly assumed state powers by declaring national and state

emergencies. The presidency has declared over 100 state emergencies since 1951, often to

remove opposition parties from power or suppress local demands for autonomy.400 A 1994

Supreme Court decision imposed limits on declaring state emergencies, which significantly re-

duced their abuse.401 Since independence, the executive has also declared four national emer-

gencies—three external (due to wars with China and Pakistan) and one internal. The contro-

versial 1975 internal emergency was widely seen as an abuse of this provision and led to the

ousting of the ruling party in elections less than two years later.

394

In 1963, the national parliament expanded “all-India services” from the administrative service and police service

to include three additional services: the service of engineers, medical and health service, and forest service. Of these

three, only the forest service became operational, because states refused to participate in the other two. The All

India Services Act, 1951, art. 2. Shriram Maheshwari, “The All-India Services,” Public Administration 49, no. 3 (1971): 291. 395

Rajya Sabha Secretariat, “Rajya Sabha at Work,” ed. Yogendra Narain (New Delhi: Government of India Press,

2006): 619–621. 396

While the constitution gives most executive powers to the president, the prime minister exercises these powers

in practice. (See Executive Branch – Structure and competencies.) 397

Laws passed under such a proclamation cease to have effect six months after the proclamation has expired. A

presidential proclamation of emergency expires after one month unless approved by the national parliament and

automatically expires after six months. INDIA CONST., 1950, arts. 352, 353, 358. 398

Laws passed under such a proclamation cease to have effect six months after the proclamation has expired. A

presidential proclamation of failure of state constitutional machinery expires after two months unless approved by

the national parliament and automatically expires after six months. INDIA CONST., 1950, arts. 250, 356. 399

A presidential proclamation of financial emergency expires after two months unless approved by the national

parliament. INDIA CONST., 1950, art. 360. 400

Krishna K. Tummala, “The Indian Union and Emergency Powers,” International Political Science Review 17, no. 4

(1996): 379. 401

S. R. Bommai v. Union of India (1994), Supreme Court of India. On the other extreme, some have accused the na-

tional executive of not imposing president’s rule when necessary. For example, during the 2002 riots in Gujarat, the

BJP-led national government did not impose president’s rule to quell the violence despite inaction from the BJP-led

state government. Mahendra P. Singh and Douglas V. Verney, “Challenges to India’s Centralized National Parliamen-

tary Federalism,” Publius: The Journal of Federalism 33, no. 4 (2003): 17–18.


83

One area where the national government has not intervened in state affairs is language rights.

As part of India’s system of ‘linguistic federalism’,

states have significant powers related to language.

State legislatures can establish official state lan-

guages—although the president can direct a state to

recognize any language that “a substantial propor-

tion of the population” desires to be recognized.402

The national government cannot establish Hindi as

the exclusive national language—at the expense of

English, which is more widely spoken and preferred

in many regions—without the consent of the state

legislatures of all non-Hindi-speaking states.403

As a result, 22 official languages are recognized

among the various states and union territories of

India.404 Nonetheless, these official languages do not

cover all linguistic minorities; many states operate as

if unilingual, even though no state has fewer than 12

language groups, and some have up to 410.405

Between National Government and Jammu and Kashmir

The state of Jammu and Kashmir, which has frequently been at the center of internal and in-

ternational conflict, is the only state with its own constitution. Many provisions of the constitu-

tion of India do not apply to it, or apply only with modifications, with the national parliament

retaining limited jurisdiction over the state. The state government must approve national laws

in the areas of defense, external affairs, and communications in order for them to apply to the

state. Unlike for other states, the national parliament cannot introduce legislation altering

Jammu and Kashmir’s name or boundaries without the consent of the state legislature.406 The

state legislature has sole authority to amend the state constitution.407 Permanent residents of

Jammu and Kashmir have certain privileges within their state that are not granted to other In-

402

INDIA CONST., 1950, arts. 345, 347. 403

Official Languages Act, 1963 (as amended 1967) art. 3. 404

INDIA CONST., 1950, Eighth Schedule. 405

Ministry of Minority Affairs, Report of the National Commission for Religious and Linguistic Minorities (2007): 33–35. 406

The Constitution (Application to Jammu and Kashmir) Order, 1954, Parts I, III. 407

Aside from certain articles relating to Jammu and Kashmir’s status as “an integral part of the Union of India,” the

extent of state powers, the governor, or the administration of elections, the state legislature can amend the state

constitution with two-thirds support from the total membership of both houses and the assent of the governor. The

Constitution of Jammu and Kashmir, art. 147. The Constitution (Application to Jammu and Kashmir) Order, 1954,

Parts XIX, XX.


Linguistic Federalism

Following independence, the boundaries of

India’s states were based in British colonial

administration, and major linguistic groups

were divided among states. This structure

quickly gave rise to political movements

demanding states based around linguistic

groups.

In 1956, India’s government redrew state

boundaries along linguistic lines so that, at

least in theory, each state encompasses

one major linguistic group.

‘Linguistic federalism’ accommodates lin-

guistic groups by allowing states to deter-

mine their own official languages.


84

dians residing there, including preferential employment with the state government, property

acquisition, settlement in the state, and scholarships.408

Jammu and Kashmir also operates under different emergency provisions than other states.

Only national emergencies related to war or external aggression apply to the state, while those

related to internal disturbances require the approval of the state government. However, the

autonomy of Jammu and Kashmir has steadily eroded since independence. In 1964, the consti-

tutional provision allowing the president to impose ‘president’s rule’ was extended to Jammu

and Kashmir, enabling extensive national intervention in state affairs.409 Conflict erupted in the

late 1980s when the prime minister undermined the state’s special autonomous status.410

Jammu and Kashmir still lacks the special autonomy granted in the constitution, and the con-

flict there persists. Finally, a 1990 law extended the controversial Armed Forces (Special Pow-

ers) Act to Jammu and Kashmir, granting extensive powers to national armed forces not previ-

ously granted.411 In these and other ways, the national government’s relationship with the state

of Jammu and Kashmir has evolved over time.

Between National Government and Union Territories

The president has direct authority over union territories and can unilaterally repeal or amend

the application of any national legislation to most of the territories.412 The president can dele-

gate the administration of union territories to an appointed administrator or lieutenant gover-

nor or to the governor of a neighboring state. Since executive authority in states is shared be-

tween the governor and chief minister, union administrators have greater authority than the

governor of a state.413

As with the states, the union territories are governed asymmetrically. Two of them (Puducherry

and the National Capital Territory of Delhi) have partial statehood. These two territories have

an elected legislative assembly and council of ministers appointed by the president and have

representation in the electoral college. The legislative assembly of Puducherry has the powers

of a state legislature,414 as does the legislative assembly of Delhi, with the exception of powers

over public security, police, and land.415 Nonetheless, the national parliament can pass laws

governing these union territories in any area, and the presidentially appointed administrator

408

Permanent residents are those residents recognized as state subjects or permanent residents under state law

prior to 1954. The Constitution (Application to Jammu and Kashmir) Order, 1954, Part III. 409

This proclamation can last a maximum of seven years rather than the three-year maximum for most states. The

Constitution (Application to Jammu and Kashmir) Order, 1954, Part XVIII. 410

Atul Kohli, “Can Democracies Accommodate Ethnic Nationalism? Rise and Decline of Self-Determination Move-

ments in India,” 1997, 342. 411

The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990. 412

INDIA CONST., 1950, art. 240. 413

INDIA CONST., 1950, art. 239. 414

The Government of Union Territories Act, 1963, art. 18. 415

INDIA CONST., 1950, art. 239AA.


85

can refer certain laws to the president for approval.416 Some union territories have sought the

partial powers of a state along the lines of Puducherry,417 while Delhi has unsuccessfully sought

to become a fully fledged subnational state.418 Some culturally distinct regions within states

have pressed for union territory status to remove themselves from state authority.419

Between State and Local Governments

State legislatures can delegate a range of powers to panchayats, including agriculture and land

use, small industries, infrastructure, education, health, and social welfare.420 They can delegate

a smaller range of powers to municipalities, including urban planning, urban infrastructure,

and social welfare.421

States vary in which powers they have devolved to the local level. While some states have de-

volved many powers,422 most panchayats and municipalities have received less autonomy in

practice than in law. While panchayats represent a millenniums-old system of self-governing

village councils, modern panchayats reflect a top-down approach to decentralization rather

than a bottom-up revival of traditional institutions. Panchayats are subservient to state gov-

ernments and largely implement state-level policies.423 Moreover, while turnout in panchayat

elections has been high, general interest in local institutions has been low.424

Between National/State Governments and Scheduled Areas/Autonomous Districts

Scheduled areas fall under both state and national executive authority.425 The governor can,

with the approval of the president, direct that an act of the national parliament or of the state

416

The Government of Union Territories Act, 1963 art. 25. The Government of National Capital Territory of Delhi Act,

1991, art. 24. 417

For example, the Andaman and Nicobar Islands. “Assembly sought for Andamans,” The Hindu (9 April 2012),

http://www.thehindu.com/news/states/other-states/article3294226.ece. 418

Jayant Sriram and Shubhomoy Sikdar, “PM non-committal, Delhi’s wait for statehood continues,” The Hindu (13

February 2015), http://www.thehindu.com/news/cities/Delhi/arvind-kejriwal-meets-narendra-

modi/article6885764.ece. Goa is the most recent union territory to gain full statehood, which it achieved in 1987. 419

For example, the Ladakh region of Jammu and Kashmir has unsuccessfully sought union territory status to sepa-

rate itself from Kashmiri authority. The Hindu, “UT status to Ladakh will dilute J&K special status: Mehbooba” (16 April

2014), http://www.thehindu.com/news/national/other-states/ut-status-to-ladakh-will-dilute-jk-special-status-

mehbooba/article5919073.ece. 420

INDIA CONST., 1950, art. 243G, Eleventh Schedule. 421

INDIA CONST., 1950, art. 243W, Twelfth Schedule. 422

For example, Kerala is widely cited as having substantively decentralized power to panchayats. D Narayana, “Local

Governance Without Capacity Building: Ten Years of Panchayati Raj,” Economic and Political Weekly 40, no. 26 (2005):

2828. 423

D. Bandyopadhyay, Saila K. Ghosh, and Buddhadeb Ghosh, “Dependency versus Autonomy: Identity Crisis of In-

dia’s Panchayats,” Economic and Political Weekly 38, no. 38 (2003): 3989. 424

Ruth J. Alsop, Anirudh Krishna, and Disa Sjoblom, “Inclusion and Local Elected Governments: The Panchayat Raj

System in India,” The World Bank (2001): 27. 425

INDIA CONST., 1950, art. 339, Fifth Schedule art. 2.


86

legislature not apply to a scheduled area or apply only with exceptions.426 States with sched-

uled areas or scheduled tribes have a council to advise the government on tribal issues.427

Four states in Northeastern India have autonomous districts and regions (or ‘tribal areas’) with

autonomous councils. These councils have a wide range of powers, including primary educa-

tion, land use, forest management, use of waterways for agriculture, regulation of traditional

agricultural techniques, establishment of village or town committees or councils, village or

town administration, appointment or succession of chiefs, property inheritance, marriage and

divorce, social customs, and village customs and courts.428 These autonomous councils also act

as courts of appeal for most cases arising from village courts, although they are still subject to

the jurisdiction of India's Supreme Court and high courts.429

National and state laws apply differently to autono-

mous districts and regions in each of the four

Northeastern states. In all cases, state governments

have considerable authority over autonomous dis-

tricts and regions. The governor, with the approval of

the state legislature, can annul acts of autonomous

councils deemed “to endanger the safety of India or

likely to be prejudicial to public order” for up to 12

months at a time.430 Also with the approval of the

state legislature, the governor can dissolve autono-

mous councils and assume all their powers for up to

six months at a time.431 However, governors have

rarely used their power to govern tribal areas direct-

ly or to block national or state laws that conflict with

traditional laws from applying to tribal areas.

The extension of panchayats to tribal areas in 1996 has resulted in parallel local government

structures, with more locally accepted traditional institutions operating alongside panchayats

that often lack local support. The national government has explored overhauls to the complex

426

INDIA CONST., 1950, Fifth Schedule art. 5. 427


Councils in the three autonomous districts of Assam—Dima Hasao, Karbi Anglong, and Bodoland—have a

broader range of powers, including levels of education above primary, a wider range of agriculture, some industry,

social welfare, public health, and communication. The autonomous council of Bodoland, where there have been

particularly high levels of violent conflict, has an even wider range of powers than those of the other two districts. 429

INDIA CONST., 1950, Sixth Schedule arts. 3, 4, 6. 430

INDIA CONST., 1950, Sixth Schedule art. 15. 431

INDIA CONST., 1950, Sixth Schedule art. 16.


Autonomous Regions

Two types of autonomous regions within

states aim to accommodate traditional

tribal structures. India has accommodated

most tribes by creating scheduled areas

within states, in which certain customary

laws and traditional justice systems apply.

However, the national government has cre-

ated autonomous districts for certain re-

gions that have forcefully pushed for inde-

pendence, autonomy, or development.

These districts differ from state to state, but

all have greater autonomy through coun-

cils with a broad range of powers.


87

system of tribal government, including a more uniform nationwide approach.432 The existence

of territorially defined tribal areas is controversial in some multiethnic regions where not all

residents are members of the scheduled tribe; in these regions, the marginalization of

nontribal members could generate conflict.433 Conflict has emerged for similar reasons in tribal

areas with significant immigrant populations.434


Between National and State Governments

The national government in India has control over the most lucrative revenue sources, includ-

ing corporation, income, and service taxes, as well as customs, excise, and tobacco duties.

However, states have broad capacities to raise revenue, including through duties on alcohol

and taxes on agricultural income, land, mineral rights, employment, sales, and luxuries.435 In

2012–2013, 61 percent of states’ revenues came from their own sources.436

The national government transfers revenue to the states through two primary mechanisms:

devolution of revenues from national taxes and duties, and grants.437 Multiple government

agencies and ministries oversee revenue transfers. A Finance Commission, appointed by the

president every five years, is the primary body tasked with making recommendations on trans-

fers.438 Although the national parliament has ultimate authority over revenue allocation, it has

usually approved the Finance Commission’s main recommendations.439

Implementation of revenue transfers from the national government to states has fluctuated

over time. In terms of vertical transfers (transfers to increase equity of resources between the

national and state governments), the Finance Commission has devolved to the states a steadily

increasing proportion of national revenues (from about 25 percent under the Third Finance

Commission to about 42 percent under the Fourteenth Finance Commission).440 Lower income

432

Subodh Ghildiyal, “Govt Plans Overhaul of Administration in Tribal Areas,” The Times of India (7 July 2012),

http://timesofindia.indiatimes.com/india/Govt-plans-overhaul-of-administration-in-tribal-

areas/articleshow/14726110.cms. 433

M. Amarjeet Singh, “Ethnic Diversity, Autonomy, and Territoriality in Northeast India: A Case of Tribal Autonomy in

Assam,” Strategic Analysis 32, no. 6 (2008): 1111–1112. 434

Sanjib Baruah, “Citizens and Denizens: Ethnicity, Homelands, and the Crisis of Displacement in Northeast India,”

Journal of Refugee Studies 16, no. 1 (2003): 44. 435

INDIA CONST., 1950, Seventh Schedule List II. The president must recommend any bill affecting the states’ ability to

levy taxes. INDIA CONST., 1950, art. 274. 436

Finance Commission of India, Report of the 14th

Finance Commission (2015–2020) (2015): 42. 437

INDIA CONST., 1950, arts. 268–271, 275. 438

As a result, the formula for allocating these transfers changes every five years. INDIA CONST., 1950, art. 280. 439

INDIA CONST., 1950, art. 275; Finance Commission of India, “Finance Commissions: A Historical Perspective,” n.d.,

http://fincomindia.nic.in/ShowContent.aspx?uid1=2&uid2=1&uid3=0&uid4=0. 440

D. K. Srivastava and C. Bhujanga Rao, Review of Trends in Fiscal Transfers in India (Chennai: Madras School of Eco-

nomics, 2009): xi; Report of the 14th

Finance Commission (2015–2020), art. 8.13.


88

and ‘special category states’ are highly dependent on these transfers, and their dependency

has increased over time.

In terms of horizontal transfers (transfers to increase equity of resources among states), the

Finance Commission has allocated revenue among states primarily based on their population

and on two measures of income—states’ absolute per capita income and their per capita in-

come relative to other states.441 An increasing proportion of transfers have gone to lower-

income states over time. Additionally, 11 states classified as ‘special category states’ have al-

ways received more transfers per capita (as much as six times higher than ‘general category’

states).442 Grants are the primary mechanism the Finance Commission uses to address hori-

zontal fiscal imbalances, and a significant share of grants has targeted revenue gaps in special

category states.

Although the Finance Commission is an autonomous agency, some studies have found that it

distributes funds based on political decisions.443 India’s Planning Commission provides addi-

tional transfers in the form of grants and loans, also based on formulas. Various government

ministries also provide transfers through over 100 discretionary programs. Because India’s

transfer system is so complex, some have argued it is difficult for the government to pursue

any clear or objective transfer policy, which may contribute to state-level fiscal mismanage-

ment.444 Ultimately, significant vertical and horizontal fiscal imbalances remain.445

Except for Puducherry and the National Capital Territory of Delhi, union territories do not re-

ceive transfers because they are directly financed from the national budget.446

Between State and Local Governments

Although the national Finance Commission makes recommendations to states to ensure ade-

quate transfers to local governments, states have authority over delegating revenue-raising

441

Srivastava and Rao, Review of Trends in Fiscal Transfers in India (2009) 5, 12. For specifics on criteria used for allo-

cating revenue, see reports from the Finance Commission of India. 442

The ‘special category states’ are the seven Northeast states, Jammu and Kashmir, Himachal Pradesh, and Ut-

tarkhand. Finance Commission of India, “A Study on the Debt Problem of the Special Category States” (Itanagar: Rajiv

Gandhi University, 2009): 1. 443

For example, one study indicated that transfers to politically aligned states were 30 percent lower than transfers

to the average state (Stuti Khemani, “Does Delegation of Fiscal Policy to an Independent Agency Make a Difference?

Evidence from Intergovernmental Transfers in India,” Journal of Development Economics 82, no. 2 (2007): 477); anoth-

er study indicated that transfers to politically aligned swing states were 16 percent higher (Wiji Arulampalam, Sugato

Dasgupta, Amrita Dhillon, and Bhaskar Dutta, “Electoral Goals and Center-State Transfers: A Theoretical Model and

Empirical Evidence from India,” Journal of Development Economics 88, no. 1 (2009): 103). 444

M. Govinda Rao, “Fiscal Decentralization in China and India: A Comparative Perspective,” Asia-Pacific Development

Journal 10, no. 1 (2003): 36. 445

Nirvikar Singh, “State Finances in India: A Case for Systemic Reform” (University of California, Santa Cruz, 2006): 6–7. 446

The legislative assemblies of Puducherry and the National Capital Territory of Delhi can raise revenues like those

of states. INDIA CONST., 1950, arts. 268, 269.


89

capacity and devolving revenues to panchayats and municipalities. As a result, local govern-

ment revenues vary considerably.447 While panchayats and municipalities in states or union ter-

ritories can raise revenue through taxes, duties, tolls, and fees, overall, panchayats and munici-

palities have raised and received little revenue. In 2002–2003, local government expenditures

accounted for around 5 percent of total government expenditures, while on average states

transferred less than 9 percent of their total revenues to local governments. Some have ar-

gued that this low level of fiscal transfers has undermined the effectiveness of panchayats and

municipalities.448

Between National/State Governments and Scheduled Areas/Autonomous Districts

India’s scheduled areas cannot raise revenues and are directly financed from the national

budget. Autonomous councils have authority to raise revenue through taxes and royalties from

licenses and leases related to mineral resources in their territory.449

Assessment

India has tried to balance a strong national government with an asymmetric federal system

that grants powers to certain disadvantaged and minority groups. This can facilitate equity of

representation and decision making, and in many areas it does. However, basing state borders

and autonomy on linguistic, cultural, or tribal difference can also reinforce group differences

and encourage the articulation of differences to gain political power. Particularly in areas

struggling with conflict, this structure has reinforced existing divisions, as seen in the North-

eastern states.

The Indian federal model is not particularly decentralized, as the national government still

maintains significant power and control over resources. Even in states granted additional pow-

ers explicitly, such as Punjab, in practice these are often overridden by provisions that apply in

cases of unrest, giving the executive and armed forces a wide range of powers.

447

For example, in 2002–2003, the highly decentralized state of Karnataka transferred more than 27 percent of its

total revenue to local governments, while Punjab transferred just 1 percent. 448

M. A. Oommen, “Fiscal Decentralisation to the Sub-State Level Governments,” Economic and Political Weekly 41,

no. 10 (2006): 897–899. 449

INDIA CONST., 1950, Sixth Schedule arts. 8, 9.


90


Members of India’s lower house of national parliament and state assemblies are directly elected

using first-past-the-post. The president, upper houses of national parliament, and upper houses

of state legislatures are indirectly elected by electoral colleges. The prime minister and governors

are appointed by the president. There is an extensive system of reserved seats for scheduled

castes and tribes and for women at the local level. As a result, women constitute 46 percent of

elected representatives locally.

a. System design

The president is elected by an electoral college consisting of elected members of both houses

of national parliament and elected members of the state and union territory legislative assem-

blies.450 The electoral college is split 50–50 between national and state/union territory repre-

sentatives.451 The president appoints the prime minister and council of ministers from among

members of the national parliament but in practice defers to the leader of the majority par-

ty.452

In India’s bicameral national parliament, the Council of States (the upper house) is mostly

elected indirectly, while the House of the People (the lower house) is mostly elected directly. In

the Council of States, state and union territory legislative assemblies elect 238 members

through single transferable vote,453 and the president nominates 12 members for their “special

knowledge or practical experience” in literature, science, art, or social science.454 In the House

of the People, voters in states and union territories elect 530 members by simple plurality vote

from single-member constituencies (also known as ‘first-past-the-post’ or FPTP); the national

parliament chooses up to 20 members to represent union territories; and the president can

appoint two members to represent the Anglo-Indian community.455

450


The five union territories without legislative assemblies do not have representation in this electoral college to

elect the president. Voting takes place on the basis of single transferable vote. INDIA CONST., 1950, art. 55. 452


Single transferable vote is a form of PR in which voters rank candidates in order of preference. Candidates need

to reach a set share of the votes, and a voter’s vote gets transferred to a lower-preference candidate if the preferred

candidate has no chance of being elected or already has enough votes. 454

INDIA CONST., 1950, art. 80. For union territories without legislative assemblies, members are selected by electoral

colleges. Representation of the People Act, 1950 art. 27A, 27H. 455

A single-member constituency is an electoral district from which only one representative is elected to a legisla-

ture or elected body. INDIA CONST., 1950, art. 81. The constitution defines an Anglo-Indian as “a person whose father

or any of whose other male progenitors in the male line is or was of European descent but who is domiciled within

the territory of India and is or was born within such territory of parents habitually resident therein…” Colloquially, it

is also used to refer to people of mixed British and Indian descent. Representation of the People Act, 1950 art. 4

and INDIA CONST., 1950, art. 366.


91

Because of the FPTP system for the House of the People, parties can win seats highly dispro-

portionate to their share of the popular vote.456 Nonetheless, given the context in India, this

system has often allowed a diverse range of groups to win representation. While single-

member constituencies are generally unfavorable to broadly dispersed minorities, most of In-

dia’s linguistic minorities—and, to a lesser extent, some of its religious minorities—are geo-

graphically concentrated and thus can still win seats in the national parliament. Moreover, re-

served seats for scheduled castes—which are geographically dispersed—and for scheduled

tribes (see Special provisions) ensure representation in the national parliament.

On the state level, governors are appointed by the president.457 The governor appoints the

chief minister and council of ministers from among members of the state legislative assembly

but in practice defers to the leader of the majority party.458 The legislative assembly is directly

elected using FPTP.459 For states with bicameral legislatures, the upper house (legislative coun-

cil) is selected by several different constituencies.460

Representatives to panchayats and municipalities are directly elected from single-member con-

stituencies.461 Members of autonomous district and regional councils are also directly elect-

ed.462


Political parties are not required to register, although they receive benefits if they do, such as

free television and radio airtime. Candidates do not need to be members of political parties to

be on the ballot.463

Some argue that the historically dominant National Congress Party played an important role in

encouraging political accommodation in the years following independence by promoting poli-

cies that benefited disadvantaged and minority groups and through its broad-based member-

456

A dramatic example occurred in 1984 when the Indian National Congress (I) won 49 percent of the popular vote

but more than 78 percent of the elected seats in the House of the People. The Indian National Congress has never

won a majority of the popular vote but nonetheless won a majority of seats in the House of the People every elec-

tion from 1989 to 2009. Election Commission of India, Statistical Report on General Elections, 1984 (New Delhi: Elec-

tion Commission of India, 1985): 85. 457

INDIA CONST., 1950, art. 155. 458

INDIA CONST., 1950, art. 164. 459

INDIA CONST., 1950, art. 332. The state of Nagaland is an exception. Representation of the People Act, 1950 art. 7.

The national government can nominate up to three representatives to the legislative assemblies of union territories.

The Government of Union Territories Act, 1963 art. 3. 460

Members of legislative councils are selected in five different ways. All elected members are chosen on the basis

of PR through single transferable vote. INDIA CONST., 1950, art. 171. 461

INDIA CONST., 1950, arts. 243C, 243K, 243R. 462

In addition to the elected members, the state governor can appoint up to four members. The constitution does

not specify the manner for electing council members. INDIA CONST., 1950, Sixth Schedule art. 2. 463

Representation of the People Act, 1951, arts. 29A, 33.


92

ship. India’s first president, Jawaharlal Nehru, has been credited by some with making the Con-

gress Party a force for stability through his commitment to its internal democracy and broad

inclusivity.464

In recent decades, India has moved from a dominant-party toward a multiparty system. Some

have linked this increased electoral competition to an increase in Hindu–Muslim riots.465 Many

new parties are based on ethnic, caste, or regional loyalties and thus lack a broad national

base. Moreover, Hindu nationalist parties—including the Baratiya Janata Party, which won a

national parliamentary majority in 2014—could challenge policies that seek to accommodate

minorities.466


The constitution reserves seats for scheduled castes and tribes in the House of the People,

state legislative assemblies, panchayats, and municipal councils and corporations. The number

of reserved seats is approximately equivalent to these groups’ proportion of the population.467

As a result, some states have no or very few constituencies reserved for scheduled castes and

tribes, while some small states have only one constituency, which is reserved for a scheduled

tribe. The reserved seats rotate among the single-member constituencies so that no constitu-

ency is permanently reserved for one group.

At the local level, one-third of panchayat and municipal council seats are reserved for women,

as are one-third of chairperson seats in panchayats.468

All states have implemented the reserved seats. As a result, over one million women serve on

panchayats nationwide and they constitute 46 percent of elected representatives in the pan-

chayat system.469 The reservations have broadly expanded political representation. A 2008

study found that 80 percent of women representatives were elected through reserved seats,

464

Rajni Kothari, Rethinking Democracy (New Delhi: Orient Longman Private Limited, 2005). 465

Steven I. Wilkinson, Votes and Violence: Electoral Competition and Ethnic Riots in India (Cambridge: Cambridge Uni-

versity Press, 2004). 466

Arend Lijphart, “The Puzzle of Indian Democracy: A Consociational Interpretation,” American Political Science Re-

view 90, no. 2 (1996): 262–264. 467

The president, in consultation with states and union territories, may specify which castes, races, tribes, tribal

communities, or groups within tribal communities to list as scheduled. As of 2015, approximately 7.5 percent of

seats in the House of the People are reserved for scheduled tribes, while 15 percent are reserved for scheduled

castes. INDIA CONST., 1950, arts. 330, 332, 341, 342. 468

This requirement applies to both the total number of seats and to the seats reserved for scheduled castes and

tribes. INDIA CONST., 1950, arts. 243D, 243T. 469

PTI, “Women Constitute 46 Percent Representation in Panchayati System: Minister,” The New Indian Express (17

December 2015), http://www.newindianexpress.com/nation/Women-Constitute-46-Percent-Representation-in-

Panchayati-System-Minister/2015/12/17/article3182603.ece


93

and also that as many as 80 percent did not come from politically connected families.470 How-

ever, in large part due to reserved seat rotation each election, 87 percent of women repre-

sentatives had run in only one election, and only 14 percent of women representatives were

reelected.471 In many districts, women serving on panchayats are representative of a wide vari-

ety of castes and classes.472 Studies have found that this representation translates to pancha-

yats’ considering issues that previously were not discussed, and to an increase in policy deci-

sions consistent with women’s priorities in the communities.473

However, there are still barriers to women’s effective decision making within the panchayats.

Many elected women face politically motivated violence, which is often worse for women from

scheduled castes and tribes.474 Illiteracy, language barriers, inexperience with the political sys-

tem, poverty, and noncooperation from the community and elected officials are all cited as

hindering full participation.475 Additionally, many of the powers panchayats are supposed to

exert have not been devolved to them, and they receive very little funding that is not already

designated for a particular purpose. This means panchayats are primarily implementers of na-

tional or state policy and are unable to carry out their own projects.476 Ultimately, women’s im-

pacts on local governance vary considerably across states and regions due to historical and

cultural differences and how long panchayats have been operational.477

The president can nominate two members of the Anglo-Indian community to the House of the

People, and governors can nominate one member of the Anglo-Indian community to state leg-

islative assemblies.478

470

AC-Nielsen ORG-MARG and Ministry of Panchayati Raj (India), “Study on EWRs in Panchayati Raj Institutions,” Min-

istry of Panchayati Raj, Government of India (2008): 158. 471

AC-Nielsen ORG-MARG and Ministry of Panchayati Raj, “Study on EWRs in Panchayati Raj,” 158. 472

Louise Harmon and Eileen Kaufman, “Dazzling the World: A Study of India’s Constitutional Amendment Mandat-

ing Reservations for Women on Rural Panchayats,” Berkeley Women’s Law Journal 32, no. 19 (2004): 75–76. 473

Raghabendra Chattopadhyay and Esther Duflo, “The Impact of Reservation in the Panchayati Raj: Evidence from a

Nationwide Randomized Experiment” (November 2003): 8–9, http://economics.mit.edu/files/769 and Harmon and

Kaufman, “Dazzling the World,” 81–82. 474

“Women’s Empowerment through Panchayati Raj,” Centre for Development and Human Rights (10 February

2015), http://www.cdhr.org.in/womens-empowerment/womens-empowerment-through-panchayati-raj/. 475

Erik Bryld, “Increasing Participation in Democratic Institutions Through Decentralization: Empowering Women

and Scheduled Castes and Tribes Through Panchayat Raj in Rural India,” Democratization 8, no. 3 (2001): 169; Har-

mon and Kaufman, “Dazzling the World,” 78. 476

Pamela Philipose, “Fifty-Fifty: Making Panchayati Raj Reservations for Women Work,” Halabol (21 January 2012),

voices.halabol.com/print/fifty-fifty-making-panchayati-raj-reservations-women-work; Sreevidya Kalaramadam,

“Dis/empowering Political Subjects: The Production of “Failed” Elected Women Representatives in India,” Women's

Studies International Forum 35 (2012): 281–283. 477

For example, several states decentralized governance to panchayats long before the 1993 amendment—with de

facto all-women panchayats emerging in some instances. Niraja Gopal Jayal, “Engendering Local Democracy: The

Impact of Quotas for Women in India’s Panchayats,” Democratization 13, no. 1 (2006): 31–32. 478

The House of the People currently includes these two appointed members. INDIA CONST., 1950, arts. 331, 333.


94

Assessment

The use of FPTP to elect members of the House of the People and state legislative assemblies

risks creating bodies that are not as representative as their constituents; however, the geo-

graphical concentration of certain minorities combined with a complex system of reserved

seats has generally allowed for diverse representation within these bodies. Reserved seats for

minorities and historically disadvantaged groups has improved equity of representation but

also encouraged competition based on identity politics and reinforced existing divisions.

Reserved seats for women at the local level has significantly increased women’s participation

and, despite barriers to full participation in some areas, has improved representation and in-

clusion in decision making and started to transform political dynamics.

Since the president and representatives of the Council of States are elected by legislatures, leg-

islative elections play an important role in ensuring that various government bodies represent

a broad range of interests. The fact that the president appoints state governors gives the na-

tional executive significant control over the state executives. The public thus has little recourse

should an executive fail to represent and consider diverse political interests, except indirectly

through legislative elections.

3. EXECUTIVE BRANCH

The president serves as head of State and the prime minister serves as head of government. In

practice, the prime minister fulfills most executive functions. India’s national executive is relative-

ly strong and has at times used emergency powers to exert control over the country, but the low-

er house of parliament can remove the prime minister through a vote of no confidence. Gover-

nors, presidentially appointed national representatives, serve as heads of subnational states,

and chief ministers serve as heads of government. Almost 50 percent of posts in India’s civil ser-

vice are reserved for scheduled castes and tribes and ‘other backward classes’.


The president of India serves as head of State, and the prime minister serves as head of gov-

ernment. As head of State, the president has the power to command the armed forces, ap-

point key public officials, grant pardons, prorogue (discontinue) either house of the national

parliament or dissolve the House of the People, and issue temporary decrees when the na-

tional parliament is in recess.479 The president serves a five-year term and is eligible for unlim-

479

The president appoints the attorney general, all judges of the Supreme Court, the comptroller and auditor gen-

eral, members of the election commission, and state governors. These appointments do not require national par-

liamentary approval, although two-thirds support from MPs present and voting is required to remove Supreme


95

ited reelection, although no president has served more than two terms.480 Although the consti-

tution vests executive authority in the president, the prime minister fulfills most executive func-

tions.481 The national executive can greatly expand its authority by issuing a proclamation of

emergency (see Political Structure—Division of powers).

Historically, the power to issue a declaration of emergency allowed the executive to exert al-

most authoritarian control over India. This occurred under Prime Minister Indira Gandhi, who

was in power from 1966 to 1977 and 1980 to 1984. Gandhi extensively used executive power

to issue proclamations of emergency and invoke ‘president’s rule’. This use of executive power

damaged relations with states and increased conflict.482 For example, a violent conflict with

Sikh separatists in Punjab boiled throughout the 1980s as the national executive imposed

president’s rule and cracked down on dissent. This conflict ended only when Gandhi’s succes-

sors restored federalism through statewide elections.483 Although in general the executive has

not played an authoritarian role in Indian politics, the executive has frequently used emergency

powers to issue decrees when the national parliament is in recess.484

The state-level executive parallels the national executive. The governor serves as head of the

subnational state, and the chief minister serves as head of government.485 The president ap-

points the governor and can dismiss him or her, making the governor a state-level representa-

tive of the national government.486 On the state level, the governor and chief minister have

comparable executive functions to their national counterparts.487


A proclamation of emergency can last no longer than one month unless approved by a majori-

ty of the membership and two-thirds of members present and voting in both houses of the

Court judges, the comptroller and auditor general, and the election commissioners. INDIA CONST., 1950, arts. 53, 72,

76, 85, 86, 123, 124, 148, 155, 324. 480

INDIA CONST., 1950, arts. 56–57. 481

The only power the constitution explicitly grants the prime minister and council of ministers is “to aid and advise

the President.” INDIA CONST., 1950, art. 74. The constitution lays out the extent of executive powers in art. 73. 482

James Manor, “Center-state relations,” in The Success of India’s Democracy, ed. Atul Kohli (Cambridge: Cambridge

University Press, 2001), 79–80. 483

Kohli, “Can Democracies Accommodate Ethnic Nationalism?” 338. 484

From 2004 to 2014, the executive issued an average of six decrees per year, including in situations that might

not be considered ‘extraordinary’, as required. Prianka Rao, “National Parliament as a Law Making Body,” PRS Legis-

lative Research (2014). 485

Art. 162 of the constitution lays out the extent of the executive power of the state. 486

INDIA CONST., 1950, arts. 153–156. 487

The governor’s powers include appointing key state-level officials such as the advocate-general, granting pardons

for crimes against state laws, proroguing either house of the state legislature and dissolving the legislative assembly,

and unilaterally promulgating temporary ordinances when the state legislature is in recess. INDIA CONST., 1950, arts.

161, 165, 174, 175, 213).


96

national parliament, and it must be reapproved every six months.488 The House of the People

can force the prime minister and council of ministers to resign through a vote of no confi-

dence, and the national parliament can impeach the president with a two-thirds majority of both

houses.489

The national parliament also has two primary ways of overseeing the executive. First, members

of parliament can use ‘question hour’, which occurs at every sitting of the Council of States, as

well as debates on the floor of the national parliament to question ministers. Second, parlia-

ment has committees that monitor the work of each ministry, monitor government expendi-

tures, examine assurances given by ministers, and investigate specific issues.490

c. Inclusivity

India reserves posts for scheduled castes and tribes in the civil service: 7.5 percent of posts are

reserved for scheduled tribes and 15 percent for scheduled castes.491 Since 1990, additional

seats have been reserved for ‘other backward classes’.492 Taken together, scheduled castes

and tribes and ‘other backward classes’ constitute more than 50 percent of the total popula-

tion of India, but the Supreme Court ruled in 1963 that reservations must account for less than

50 percent of the total membership of any body.493 As a result of these reserved posts, sched-

uled castes and tribes now form an important political force.

India’s executive is majoritarian—the majority party selects the prime minister and the entire

council of ministers, effectively excluding the opposition. However, the executive has often re-

flected India’s diversity due to informal mechanisms. While the National Congress Party has

been in power most of the time since independence, India’s presidents have been representa-

tive of the country’s religious, geographical, and linguistic diversity, and the president and vice

488

INDIA CONST., 1950, art. 352. 489

INDIA CONST., 1950, arts. 61, 75. 490

Joyita Ghose, “National Parliamentary Oversight of the Executive,” PRS Legislative Research (2014) and Parliamen-

tary Bulletin II, No. 52453 (11 November 2014), http://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=52453. 491

Scheduled castes and tribes are also reserved spots in state-funded educational institutions. INDIA CONST., 1950,

arts. 15, 16, 46, 335; The Central Education Institutions (Reservation in Admission) Act, 2006. 492

This is a technical term used throughout Indian legal documents. ‘Other backward classes’ represent those

castes immediately above the untouchables in the caste hierarchy. The government reserved 27 percent of civil

posts for ‘other backward classes’ in 1990. Ministry of Personnel, Public Grievances, and Pensions, “Reservation for

Other Backward Classes in Civil Posts and Services under the Government of India,” Office Memorandum No.

36012/31/90-Estt. (7 August 1990). In 2006, it extended this 27 percent reservation to state-funded educational

institutions and constitutionally enshrined the government’s right to enact reservations for these classes in addition

to scheduled castes and tribes. The Central Education Institutions (Reservation in Admission) Act, 2006. INDIA CONST.,

1950, art. 338. 493

As such, reservations stand at 49.5 percent, although some states have exceeded this maximum. M. R. Balaji and

Others v. State of Mysore (1963), Supreme Court of India.

http://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=52453


97

president traditionally come from different regions.494 The council of ministers has generally

represented religious and linguistic groups and geographical regions proportionately.495

Assessment

India’s strong executive can undermine the federal structure, especially when making use of

emergency powers and executive appointments. Legislative checks on the executive and pro-

visions for inclusion of marginalized groups in the executive and legislative branches can miti-

gate this to some extent.


India has a bicameral national legislature. The indirectly elected Council of States (upper house)

represents state interests, while the directly elected House of the People (lower house) has great-

er control over legislation in certain areas and situations. The council of states can serve as a

check on national overreach. Most states have unicameral legislatures, although some have both

upper and lower houses, in which case the directly elected lower house has greater control over

legislation.


The national parliament is bicameral: it consists of a Council of States (indirectly elected upper

house) and House of the People (directly elected lower house).496 The Council of States has

250 members who serve staggered six-year terms. It cannot be dissolved.497 The House of the

People has a maximum of 552 members, and representation is proportionate to state popula-

tion.498 Members of the House of the People serve five-year terms, with the House dissolving

every five years. The House of the People can postpone its dissolution under a proclamation of

emergency.499

The House of the People has greater authority than the Council of States in three ways. First, in

a joint session of the national parliament, the House of the People has more influence because

it accounts for two-thirds of the national parliament’s total membership. Second, although

494

Of 13 presidents, nine have been Hindu, three Muslim, and one Sikh (broadly reflecting the proportion of these

three religions within India’s population), and presidents have come from eight different states spanning north to

south and spoken nine different native languages. 495

V. A. Pai Panandiker and Ajay K. Mehra, The Indian Cabinet: A Study in Governance (Delhi: Konark Publishers, 1996). 496


Of these 250 members, 12 are appointed by the president and 238 are indirectly elected from the states and

union territories. INDIA CONST., 1950, arts. 80, 83. 498

Of these members, 530 represent the states, up to 20 represent the union territories, and no more than two are

appointed by the president to represent the Anglo-Indian community. INDIA CONST., 1950, art. 331. 499

INDIA CONST., 1950, art. 83.


98

both houses can introduce bills, only the House of the People can introduce money bills (those

concerning taxation or government spending and bills relating to allocating revenue), and the

Council of States cannot block their passage.500 Third, only the House of the People can pass a

vote of no confidence against the government.501

The Council of States has the exclusive power to mandate the national parliament to tempo-

rarily assume certain state-level powers or to establish ‘all-India’ services (see Political Struc-

ture).502 The Council of States can also approve proclamations of emergency when the House

of the People is dissolved.503

Most states have unicameral legislatures with a single chamber called the legislative assem-

bly.504 Seven states have a bicameral legislature with an upper house, the legislative council.505

The legislative assembly can override the legislative council and pass any bill unilaterally.506


Parliament makes most decisions by a majority of members present and voting in both hous-

es.507 The Council of States cannot block the passage of money bills.508 Parliament passes the

majority of bills introduced by the executive, often with little debate, because members are re-

quired to vote along party lines.509

To impeach the president, remove a Supreme Court justice, approve a proclamation of emer-

gency, or amend the constitution, approval by a two-thirds majority of members in both hous-

es is required.510 Approval by a two-thirds majority of members present and voting in the

500

INDIA CONST., 1950, art. 109. 501


INDIA CONST., 1950, arts. 249, 312. 503

INDIA CONST., 1950, arts. 352, 356. 504

Membership in these assemblies can range from 60 to 500 members. Members are elected to five-year terms

from single-member constituencies. INDIA CONST., 1950, arts. 170, 172. The Constitution also allows for the creation

of legislative assemblies in union territories, and such assemblies exist in Puducherry and the National Capital Terri-

tory of Delhi. The Government of Union Territories Act, 1963 art. 3. The Government of National Capital Territory of

Delhi Act, 1991 art. 3. 505

These states are Andhra Pradesh, Bihar, Madhya Pradesh, Maharashtra, Karnataka, Tamil Nadu, and Uttar Pra-

desh. With the approval of the national parliament, any state legislative assembly can abolish or create a legislative

council with a majority of the total membership, including two-thirds of members present and voting. Legislative

councils have at least 40 members but no more than one-third of the membership of the legislative assembly.

Members serve staggered six-year terms. INDIA CONST., 1950, arts. 168, 169, 171. 506

Moreover, as with the House of the People on the national level, only the legislative assembly can introduce bills

related to money. INDIA CONST., 1950, arts. 197, 198, 207. 507

INDIA CONST., 1950, art. 100. 508

INDIA CONST., 1950, art. 109. 509

Kaushiki Sanyal, “The Executive versus the Legislature,” PRS Legislative Research (2009): 3. 510

INDIA CONST., 1950, arts. 61, 124, 352, 368.


99

Council of States is required to mandate parliament to temporarily assume state-level powers

or to establish ‘all-India’ services.511


The president can dissolve the House of the People and call for early elections, but the Council

of States cannot be dissolved.512

Assessment

India’s House of the People is generally representative of India’s diversity due to the composi-

tion of geographical districts and the reserved seats for scheduled castes and tribes. The

Council of States provides national representation to states’ interests and serves to protect the

states from certain national parliamentary decisions. As a result, state representatives in the

national legislature can block the national government from undermining the federal system.

However, India’s strong executive limits parliament’s authority to some extent.


Ministries and national parliamentary committee sessions are often open to the public. They al-

so occasionally invite comments on draft legislation, although this is not required. India’s Right

to Information Act increases public access to information from government bodies. The Delimita-

tion Commission is the only government body constitutionally required to engage in public con-

sultations. At the local level, the gram sabha serves as a form of direct democracy. Since many

mechanisms are voluntary or inconsistently implemented, participation is often situational.


India expanded avenues for public participation in 2005 with the passage of the Right to In-

formation Act. This act requires all branches of government to make documents easily accessi-

ble to the public and to respond to public requests for information.513 Implementation of the

Act has been uneven. Nonetheless, increasing civil society use of the law to expose govern-

ment mismanagement indicates its potential as a platform for expanded public participa-

tion.514

511

INDIA CONST., 1950, arts. 249, 312. 512

INDIA CONST., 1950, arts. 83, 85. 513

Right to Information Act, 2005. This act does not apply to Jammu and Kashmir, which is governed by a similar act

passed by the state legislative assembly, the Jammu and Kashmir Right to Information (Amendment) Act, 2009. 514

Alasdair Roberts, “A Great and Revolutionary Law: The First Four Years of India’s Right to Information Act,” Public

Administration Review 70, no. 6 (2010): 925. Akash Kapur, “Prying Open India’s Vast Bureaucracy,” New York Times (17

June 2010), http://www.nytimes.com/2010/06/18/world/asia/18iht-letter.html.


100

Although not legally required, the executive often engages the public at various stages of the

legislative process, but the level of engagement varies significantly depending on the law under

consideration. Government ministries sometimes publish draft legislation and solicit com-

ments or invite stakeholders to consultations, although this is not legally required.

The only government body constitutionally required to engage in public consultations is India’s

Delimitation Commission, which determines how many seats each state receives in the House

of the People, determines which seats to reserve for scheduled castes and tribes, and over-

sees the drawing of electoral district boundaries. The Delimitation Commission is required to

publish its proposals for constituency boundaries, set a period for public comment on these

proposals, hold public hearings in each state, and publish the final boundaries.515 During In-

dia’s delimitation exercise conducted from 2002 to 2007, the Delimitation Commission fol-

lowed the constitutional provisions related to public participation and accepted broad public

input.516


National parliamentary committees often invite comments on draft legislation. Various com-

missions periodically review laws that have already been passed and invite public comments

on whether to amend or repeal them.517 However, the national parliament is not required to

submit legislation to committees, and the committees are not legally required to consult the

public. Civil society groups have drafted several pieces of legislation. The Right to Information

Act applies to both the executive and legislative branches.


The gram sabha, or ‘people’s forum’, is a traditional avenue for public participation embedded

in the panchayat system and formally recognized in the constitution. A gram sabha is a body

consisting of all registered voters in any given village-level panchayat. It convenes to make deci-

sions by majority vote on local issues. State legislatures determine the powers and functions of

gram sabhas518 and as a result, gram sabhas operate differently from state to state.519 In prac-

515

Delimitation Act, 2002, arts. 9, 10. 516

The Delimitation Commission published draft proposals in the official gazette and media; publicized the date,

time, and venue for public sittings; and invited suggestions for what would be discussed at these sittings. Ultimately,

it held 130 public sittings in 24 states (public sittings were not held in several states in which the delimitation pro-

cess was postponed to prevent political conflict) with a total of 122,000 attendees, tabulated and examined all pub-

lic comments, and published the final delimitation order in the official gazette and two newspapers. Delimitation

Commission of India, Changing Face of Electoral India: Delimitation 2008 (New Delhi: M/s Viba Press, 2008): 6–9. 517

Harsimran Kalra, “Public Engagement with the Legislative Process,” PRS Legislative Research (2011). 518

INDIA CONST., 1950, arts. 243, 243A. 519

For example, some states convene gram sabhas twice per year, while other states convene them four times;

some states hold all gram sabhas statewide on the same day, while others spread them out over the course of a

month; and some states require minimum quorums for meetings while others do not.


101

tice, participation has been low, particularly among women. Several states have supplemented

gram sabhas with lower-level ward sabhas—village meetings for populations ranging from 250

to 1,000 people—and some have found that these are more effective in raising issues and in-

creasing the participation of women.520

d. Referendums

India’s constitution does not mention referendums, but India has held one subnational refer-

endum. The national parliament passed legislation allowing a referendum to determine

whether the union territory of Goa, Daman, and Diu would remain a union territory, split, or

merge with neighboring states.521

Assessment

Voluntary engagement with the public, the Right to Information Act, and gram sabhas all pro-

vide opportunities for public participation. However, their uneven application and the fact that

few opportunities for participation are legislated mean most mechanisms for public engage-

ment are not applied evenly. Engagement thus relies on a case-by-case basis and on the good

faith of those in government.


India has provisions for traditional and customary arrangements in several key areas: reserved

seats for scheduled castes and tribes; constitutional protection and support for linguistic and

religious minorities, particularly in the education system; enactment of distinct personal laws for

key religious groups; and establishment of autonomous tribal areas with tribal justice systems in

certain states. These protections can help take account of diverse interests but also emphasize

certain distinctions, while at times excluding other groups.


India reserves posts in the civil service for scheduled castes and tribes and ‘other backward

classes’ (see Executive Branch—Inclusivity). These reservations also apply to State-funded aca-

demic institutions.

The constitution also provides for the creation of specific government institutions to oversee

the welfare of the scheduled castes and tribes. The president is charged with appointing a Na-

520

Malini Nambiar, “Making the Gram Sabha Work,” Economic and Political Weekly 36, no. 33 (2001): 3114–3117. 521

The legislation allowed for an ‘opinion poll’, but it was essentially a referendum because its result was binding.

Aureliano Fernandes, “Goa’s Democratic Becoming and the Absence of Mass Political Violence,” Lusotopie (2003):

334–335; The Goa, Daman and Diu (Opinion Poll) Act, 1966.


102

tional Commission for Scheduled Castes and a National Commission for Scheduled Tribes.

These commissions are tasked with monitoring and recommending improvements to constitu-

tional and legal safeguards for scheduled groups, investigating complaints about deprivation of

their rights, and overseeing their socioeconomic development.522 The constitution also re-

quires that governors of certain states appoint a minister for tribal welfare.523


India reserves seats in the House of the People, state legislative assemblies, panchayats, and

municipal councils and corporations for scheduled castes and tribes (see Systems of Election

and Selection—Special provisions).


India has separate personal laws for Hindus, Mus-

lims, Christians, Parsees, and Jews. Modern Hindu

law grew out of colonial Anglo-Hindu law and is en-

shrined in four Hindu Code Bills adopted shortly af-

ter independence. These bills uniformly codify Hindu

law throughout India, although Hindu practice varies

by region. The Code Bills are based on Hindu princi-

ples but apply also to Buddhists, Jains, and Sikhs

(explicitly), as well as anyone who is not a Muslim,

Christian, Parsee, or Jew.524

Any Muslim in India can submit to Muslim law in

matters related to personal law.525 Unlike Hindu per-

sonal law, Muslim personal law is not codified but is

based on traditional Islamic law (Sharia). The non-

governmental All India Muslim Personal Law Board (founded in 1973) advises on Sharia law,

but Sharia law is administered by secular courts. As a result, non-Muslim judges regularly in-

terpret and rule on Islamic law.526

522

INDIA CONST., 1950, arts. 338, 338A. 523

This requirement applies only to the states of Chhattisgarh, Jharkhand, Madhya Pradesh, and Orissa. INDIA CONST.,

1950, art. 164. 524

Hindu Marriage Act, 1955. Hindu Succession Act, 1956. Hindu Minority and Guardianship Act, 1956. Hindu Adop-

tions and Maintenance Act, 1956, art. 2. 525

Muslim Personal Law (Shariat) Application Act, 1937, arts. 2, 3. 526

Marc Galanter and Jayanth Krishnan, “Personal Law Systems and Religious Conflict: A Comparison of India and

Israel,” in Religion and Personal Law in Secular India: A Call to Judgment, ed. Gerald James Larson (Bloomington: Indiana

University Press, 2001): 274–276.


Religious Personal Laws

Personal laws govern matters such as mar-

riage, inheritance, and adoption. India

aims to accommodate several religious

minorities, including Muslims, by allowing

them to follow their own religious personal

laws.

Although there are separate personal laws,

criminal and civil laws remain secular and

apply universally to all groups in India. In

addition, because of India’s secular judicial

system, religious personal laws are tried in

secular courts.


103

Some have argued that the legal system’s default to Hindu law—as well as the fact that much

of the common civil code reflects Hindu principles—gives the impression that Hindu law is

more accepted and more secular than Muslim law. This perceived bias toward Hindu law may

contribute to the idea that Muslim law is ‘backward’ and can only become secular if ‘Hin-

duized’.527

Nonetheless, Muslims have largely resisted attempts to codify their personal law, partly out of

aversion to Hindus legislating on Islam and partly out of fear that this legislation would seek to

‘reform’ Islamic law.528 Even uncodified, Muslim personal law has proven resistant to challeng-

es. Most notably, following a landmark case in which the Supreme Court upheld common civil

law over Muslim law,529 the national parliament responded to Muslim outrage by largely revers-

ing the secular judgment.530

Other objections to how the implementation of personal law functions have been raised. Many

Sikhs, Jains, and Buddhists object to being categorized under Hindu law when they do not

identify as Hindu. Other groups, such as Baha’i and nonbelievers, are not categorized at all and

thus by default are subject to Hindu law.

States with scheduled areas or scheduled tribes have councils to advise on tribal affairs.531 In

most states, these councils have only advisory power, but in states with autonomous areas,

their powers include administering customary personal law and creating, developing proce-

dures for, and enforcing the decisions of village councils and courts (see Political Structure—

Division of powers).532 In two states, the constitution bans the national parliament from legislat-

ing on the religious or social practices or customary law of the main ethnic group without the

consent of the legislative assembly.533 These provisions create a local-level system of custom-

ary personal law and traditional justice in certain regions.

527

Madhu Kishwar, “Codified Hindu Law: Myth and Reality,” Economic and Political Weekly 29, no. 33 (1994): 2159. 528

Granville Austin, “Religion, Personal Law, and Identity in India,” in Religion and Personal Law in Secular India: A Call

to Judgment, ed. Gerald James Larson (Bloomington: Indiana University Press, 2001): 22. 529

Mohd. Ahmed Khan v. Shah Bano Begum and Ors. (1985), Supreme Court of India. 530

The national parliament reversed the judgment through The Muslim Women (Protection of Rights on Divorce)

Act, 1986, which, in accordance with Sharia law, largely withdrew the right of Muslim women to receive alimony. 531


INDIA CONST., 1950, Sixth Schedule arts. 3, 4. 533

This is true for Nagaland and Misoram. INDIA CONST., 1950, arts. 371A, 371G.


104

SPECIAL FEATURE: EDUCATION FOR MINORITY GROUPS

The constitution gives minority groups, including religious and linguistic minorities, the right to establish

and administer educational institutions. The constitution also requires that states strive to “provide ad-

equate facilities for instruction in the mother-tongue at the primary stage of education to children be-

longing to linguistic minority groups” and bans discrimination in financial support to any educational

institution “on the ground that it is under the management of a minority, whether based on religion or

language.”

Source: INDIA CONST., 1950, arts. 30, 350A


In scheduled areas and autonomous districts and regions, traditional institutions and

customary laws remain in place. Councils in autonomous districts and regions have a range of

powers, including land management, appointment or succession of chiefs, personal law, social

customs, and village customs and courts.534 (See Political Structure—Division of powers.)

Assessment

Reserved seats for scheduled castes and tribes, constitutional protection and support for lin-

guistic and religious minorities, enactment of distinct personal laws for key religious groups,

and establishment of autonomous tribal areas with tribal justice systems all contribute to in-

clusion and equity of decision making in India. In scheduled areas and autonomous districts

and regions, the special rights and powers granted to councils increase the decision-making

influence of those who have been historically marginalized.

India’s recognition of a number of distinct personal laws seeks to preserve the religious and

cultural practices of minority groups that otherwise might not be protected. However, this sys-

tem has also been criticized for the fact that by default, Hindu law applies, and not all groups

within India are allowed to follow their own personal laws.

Conclusion

Despite India’s diversity, it has been argued that a number of factors facilitate the implementa-

tion of provisions that promote political accommodation. One factor is the extraordinary diver-

sity itself; the diversity of groups has prevented any one group from emerging as dominant.

Moreover, the presence of significant diversity even within groups has caused intragroup dis-

534

Councils in the three autonomous districts of Assam—Dima Hasao, Karbi Anglong, and Bodoland—have a

broader range of powers, including levels of education above primary, a wider range of agriculture, some industry,

social welfare, public health, and communication. The autonomous council of Bodoland, where there have been

particularly high levels of violent conflict, has an even wider range of powers than those of the other two districts.


105

parities often to overshadow intergroup disparities. The geographical concentration of certain

groups has facilitated granting these groups autonomy and providing them representation

through reserved seats. When violence has erupted, India’s large size has prevented local or

regional conflicts from seriously challenging central authority. India also has a longstanding

sense of nationalism and tradition of accommodation, embodied by the National Congress

Party and traditional village panchayats.535

India has taken advantage of these factors to accommodate various groups through a federal

system, and this system has largely succeeded in maintaining stability. The combination of a

strong State and the leadership of Prime Minister Jawaharlal Nehru led to the effectiveness of

federalism in the early years of independence. The creation of many new states along linguistic

lines has helped accommodate distinct linguistic groups demanding greater autonomy.

In practice, however, provisions on federalism have not always been fully implemented, and at

times the national executive has used emergency powers to assert control over subnational

states. Since the late 1980s, India’s federal system has regained strength, and most states have

gained greater autonomy. Increased electoral competition has undermined the hegemony of

the National Congress Party and forced recent governing coalitions to incorporate regional

parties that more directly represent subnational interests. In addition, several autonomous

government institutions have increasingly bolstered state autonomy. In many places however,

relations between the national, state, and local levels and between minority and majority

groups remain tenuous.

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HOW GOVERNANCE FUNCTIONS | MALAYSIA

111

MALAYSIA

Executive Summary

This case study focuses on Malaysia’s governance arrangements analyzed through the lens of









Malaysia is an ethnically and religiously diverse country that has had a history of intergroup

tensions. Malaysia is a highly centralized, asymmetric federation, where Islam is the official reli-

gion and freedom of religion is allowed. It has mostly maintained stability through its central-

ized federal system, which has successfully spurred consistent economic growth, recognition

of religious diversity, and incorporation of traditional leaders; this has helped increase accom-

modation. However, non-Malay and non-Muslim groups continue to express to concerns

about fair representation and protection of their rights. The national government holds signifi-

cant powers and controls the vast majority of revenue streams so that most states have little

autonomy, except with respect to Islam, where states have exclusive authority. The states of

Sabah and Sarawak are exceptions, since they have constitutionally recognized powers and

sources of revenue that are not afforded to other states, although many of these powers have

not been fully implemented. Malaysia incorporates into its governance system a system of he-

reditary rule that dates back to at least the 15th century.

Table 7—Accommodating and Less Accommodating Aspects in Malaysia


MALAYSIA

Centralized, asymmetric federalism

Subnational control over Islam

Consistent economic growth

Integration of traditional leaders into

executive levels



First-past-the-post and high numbers

appointed


Special rights for majority Malays

Limited space for public participation


112

Background

Malaysia is a former British colony that gained independence in 1957 after negotiations over

self-rule. The country is geographically divided between the Malaysian Peninsula (known as

West or peninsular Malaysia) and territory on the island of Borneo (East Malaysia). Approxi-

mately 80 percent of the population lives in West Malaysia, while the rest of the population

lives in the states of Sabah and Sarawak in East Malaysia.536

In 2016, the population of Malaysia was approximately 31.7 million people.537 There are four

main ethnic groupings in the country: Ethnic Malays,538 Malaysians of Chinese and Indian de-

scent, and other indigenous groups. Ethnic Malays constitute a little over 50 percent of the

population while other indigenous groups account for approximately 19 percent of the total

population.539 Chinese-Malaysians constitute approximately 23 percent, and Indian-Malaysians

make up approximately 7 percent of the population.540

Ethnic and religious identities have been significant in Malaysian politics historically and today.

At independence, ethnic differences translated into economic segregation, with Malays gener-

ally being politically strong but economically weak and Chinese Malaysians economically strong

but politically marginalized.541 The 1957 Federal Constitution of Malaysia is the result of a nego-

tiated compromise and aims to protect Malay rights and customs while also recognizing the

rights of all citizens in a multiethnic State.542 Political representation, including political parties,

has thus tended to be organized along ethnic lines.543 The United Malays National Organization

(UMNO) formed in the late 1940s to protect Malay interests in negotiations with the British

over self-rule and has remained the dominant party.544 UMNO, the Malaysian Chinese Associa-

tion (MCA), and the Malaysian Indian Congress (MIC) together formed a coalition that has held

power since independence, the Barisan Nasional (BN, National Front [hereafter BN]).545

536

Bridget Welsh, “Malaysia’s Elections: A Step Backwards,” Journal of Democracy 24, no. 4 (October 2013): 137. 537

Department of Statistics, Malaysia, “Current population estimates, Malaysia, 2014–2016,” Government of Malay-

sia, 22 July 2016, https://www.statistics.gov.my/index.php?r=column/cthemeByCat&cat=155&bul_id=OWlxdEVoYlJCS

0hUZzJyRUcvZEYxZz09&menu_id=L0pheU43NWJwRWVSZklWdzQ4TlhUUT09. 538

The constitution defines ‘Malay’ as a person who professes the religion of Islam, speaks the Malay language, con-

forms to Malay custom, and has Malay parents or was born in Malaysia. MALAYSIA FEDERAL CONSTITUTION, 1957, art.

160(2). 539

The State counts these two groups together as “bumiputera” (sons of the soil). Welsh, “Malaysia’s Elections,” 137. 540

Department of Statistics, Malaysia, “Current population estimates.” 541

Ben Thirkell-White, “Political Islam and Malaysian Democracy,” Democratization 13, no. 3 (2006): 423. 542

Jaclyn Ling-Chien Neo, “Malay Nationalism, Islamic Supremacy and the Constitutional Bargain in the Multi-ethnic

Composition of Malaysia,” International Journal on Minority and Group Rights 13 (2006): 96. 543

Welsh, “Malaysia’s Elections,” 137. 544

Francis E. Hutchinson, “Malaysia’s Federal System: Overt and Covert Centralization,” Journal of Contemporary Asia

44, no. 3 (2014): 425–427. 545

Hutchinson, “Malaysia’s Federal System,” 425, 428.


113













3. Executive branch






the Strands.


Malaysia has used specific mechanisms that promote accommodation of different interests.



Malaysia is a highly centralized, asymmetric federation. The constitution grants the federal gov-

ernment extensive political powers and sources of revenue. The powers and resources extended

to the states of Sabah and Sarawak allow for the possibility of a more accommodating political

structure; however, even there the federal government has limited the states’ authority through

financial control. A notable exception is with regard to Islamic law, which falls to the states, and

over which states have been able to maintain a considerable amount of control.

546




114

a. Structure

Malaysia is a highly centralized, asymmetric federation with a constitutional monarch. The fed-

eration was established in 1957 and today is composed of 13 states and three federal territo-

ries. Each of the states has its own government, while the territories are administered directly

by the federal government. The states of Sabah and Sarawak joined the federation most re-

cently and negotiated a set of constitutional provisions upon entrance into the federation in

1963 that grants them considerably more autonomy than the peninsular Malay states. (See

Division of powers.)

Nine of the 13 states are governed through systems of hereditary rule based on a sultanate

structure that dates back to at least the 15th century.547 The heads of these states are known

as rulers. In the remaining four states, a governor serves as the head of the state. The state-

level executive branch also includes a chief minister and an executive council. Legislative au-

thority at the state level is vested in unicameral legislatures.

At the federal level, the executive includes the king, a prime minister, and a cabinet. The mon-

archy is a rotating office, where each of the nine hereditary rulers serves a five-year term. Leg-

islative authority falls to the House of Representatives (the lower house of parliament) and the

Senate (the upper house). Members of the Senate are either appointed by the king or elected

by state legislative assemblies. Members of the House of Representatives are popularly elected

from single-member districts. (See Systems of Election and Selection.)

The Conference of Rulers (Majlis Raja-Raja) is a federal body that consists of the nine hereditary

rulers and four appointed governors. The main function of the Conference is to elect the king

and deputy king. The Conference also serves as an advisory body to the federal government.

547

Andrew Harding, “Sovereigns Immune? The Malaysian Monarchy in Crisis,” The Round Table 83, no. 327 (1993):

305.


115

Figure 9—Malaysia’s Political Structure


The federal government’s exclusive powers are extensive. For example, they include authority

over education and health, which are often shared or delegated in federal structures. Their

powers include:

external affairs;

defense of the federation, including control over the armed forces, and internal security;

administration of justice, including matters of civil and criminal law and procedure (but

excluding the organization and constitution of Sharia courts);

finance, trade, commerce, and industry;

communications and transport;

education, medicine and health, and labor and social security;

welfare of the aborigines; and

publications and censorship.548

548

For other areas of federal competency, see MALAYSIA FEDERAL CONSTITUTION, 1957, Ninth Schedule, List I.


116

The federal legislature can also make laws with respect to state competencies in certain cir-

cumstances, such as for the purpose of promoting uniformity of law in two or more states.549

During state emergencies, the federal government can make laws at the state level and can

even amend state constitutions.550

Exclusive state powers include local administration and service provision, land tenure, agricul-

ture and forestry, public works, and management of Islamic and cultural sites and customs.551

Shared powers between the federal and state governments include social welfare, town and

country planning, public health, housing, and water supplies and services.552 In the case of any

conflict, federal law prevails over state law.553

The states of Sabah and Sarawak, however, have more autonomy than other states in the fed-

eration. The constitution was amended upon their entrance to create several provisions for the

states and their constituents. For example, constitutional amendments regarding citizenship,

allocation of seats in the House of Representatives, and other matters within the two states

cannot be passed without the respective state’s approval.554 The two states maintain control

over native law and custom; ports and harbors; and the Sabah railway.555 Additional shared

powers between the two states and the federal government include personal law;556 shipping;

fisheries; production, distribution, and supply of water power; and charities and charitable

trusts.557 Sabah and Sarawak also receive more grants and sources of revenue than other

states.558

Islamic Law

Except in the federal territories of Kuala Lumpur, Labuan, and Putrajaya, maintenance of Islam-

ic law falls exclusively to the states.559 Thus, states have exclusive power over family and per-

sonal law for Muslims and to punish offenses against Islam committed by Muslims. The two

highest courts in Malaysia, the High Court in Malaya and the High Court in Sabah and Sarawak,

do not have jurisdiction over any matters that fall within the jurisdiction of the Sharia courts.560

549

Such laws must first be approved by the legislative assemblies of the states affected before coming in force. See

MALAYSIA FEDERAL CONSTITUTION, 1957, art. 76 , cl. 3. 550

Hutchinson, “Malaysia’s Federal System,” 426. 551

MALAYSIA FEDERAL CONSTITUTION, 1957, Ninth Schedule, List II. 552

MALAYSIA FEDERAL CONSTITUTION, 1957, Ninth Schedule, List III. 553

MALAYSIA FEDERAL CONSTITUTION, 1957, art. 75. 554

MALAYSIA FEDERAL CONSTITUTION, 1957, art. 161e , cl. 2. 555

MALAYSIA FEDERAL CONSTITUTION, 1957, Ninth Schedule, List IIa. 556

Personal law relates to marriage, divorce, guardianship, maintenance, adoption, legitimacy family law, gifts or

succession, testate or intestate. See MALAYSIA FEDERAL CONSTITUTION, 1957, Ninth Schedule, List IIIa (10). 557

MALAYSIA FEDERAL CONSTITUTION, 1957, Ninth Schedule, List IIIa. 558

MALAYSIA FEDERAL CONSTITUTION, 1957, Tenth Schedule, Part IV and V. 559

MALAYSIA FEDERAL CONSTITUTION, 1957, Ninth Schedule, List II, cl. 1. 560

MALAYSIA FEDERAL CONSTITUTION, 1957, art. 121(1a).


117

This division of powers in relation to Islam has led to some states adopting restrictive Islamic

laws. The states of Penang and Johore impose stiff penalties for those convicted of Islamic

criminal offenses.561 Perlis passed a law on apostasy for converts, and Selangor started arrest-

ing Muslims who worked in establishments that served alcohol for “insulting Islam.”562 At the

same time, while Islam is the official religion in Malaysia (see Traditional and Customary Ar-

rangements), the constitution does not require state constitutions to reflect that, and three

states have not proclaimed it as their official religion.563

However, while states maintain legislative competence over Islamic law, as the practice of Islam

has become a more salient part of the political debate, the federal government has exerted

increasing administrative control over implementation of Islamic policies.564 In the 1980s and

1990s, federal officials from the ruling UMNO party implemented a series of reforms to

streamline federal and state Islamic bureaucracies. The federal government’s Center for Islamic

Policy Development was elevated to a department under the prime minister, now known as

the Department of Islamic Development of Malaysia (JAKIM).565 It drafts legislation for states to

consider, often emphasizing procedural aspects to limit judicial discretion.566 JAKIM created a

public service scheme to train and employ Sharia judges and officials, who were previously

employed by state religious departments.567 The federal legal service aims to standardize ap-

plication of Sharia and ensure consistent, quality legal services.568 Over time, most judges have

switched from being employed directly by states to enrolling in JAKIM’s federal service, which

opponents contend allows the ruling party to disseminate their views on religious law across

the states in the name of administrative coordination.569 The process of issuing fatwa in Malay-

sia is also highly centralized, limiting the ability of subnational religious authorities to make in-

dependent rulings.570

This tension between states and the federal government means there is a constant negotiation

on questions of Islamic law. Attempts in the states of Kelantan and Terengganu to implement

561

Fauzi, “Implementing Islamic Law,” 167. 562

Patricia A. Martinez, “The Islamic State or the State of Islam in Malaysia,” Contemporary Southeast Asia 23, no. 3

(2001): 482–83. 563

The three are Penang, Malacca, and Sarawak. Ahmad Fauzi Abdul Hamid, “Implementing Islamic Law within a

Modern Constitutional Framework: Challenges and Problems in Contemporary Malaysia,” Islamic Studies 48, no. 2

(2009): 161. 564

Ahmad Fauzi Abdul Hamid, “Syariahization of Intra-Muslim Religious Freedom and Human Rights Practice in Ma-

laysia: The Case of Darul Arqam,” Contemporary Southeast Asia 38, no. 1 (2016): 30–31. 565

Ahmad Fauzi Abdul Hamid, “The Changing Face of Political Islam in Malaysia in the Era of Najib Razak, 2009–

2013,” Journal of Social Issues in Southeast Asia 30, no. 2 (2015): 309. 566

Martinez, “The Islamic State or the State of Islam,” 477; Kikue Hamayotsu, “Once a Muslim, always a Muslim: the

politics of state enforcement of Syariah in contemporary Malaysia,” South East Asia Research 20, no. 3 (2012): 408. 567

Hamayotsu, “Once a Muslim,” 408. 568

Hamayotsu, “Once a Muslim,” 409. 569

Fauzi, “Syariahization,” 30; Hamayotsu, “Once a Muslim,” 409. 570

Fauzi, “Syariahization,” 34.


118

laws allowing for punishments of crimes according to Islamic law have been thwarted by the

federal government.571 And policies proclaimed at the federal level require support at the state

level for implementation.


Malaysia has a highly centralized system of revenue allocation. The federal government re-

ceives the vast majority of revenue through tariffs; a variety of taxes that include income, prop-

erty, production, and consumption taxes; and natural resource extraction.572 The federal gov-

ernment revenue allocation before intergovernmental transfers came to 90.7 percent in the

period 2006–2010.573

The states have few opportunities to raise their own revenue and rely heavily on the federal

government for funding. Financial resources for the states are strictly limited to revenue from

lands, mines, and forests; license and court fees; rents on state property; and Islamic religious

revenue.574 These sources of revenue do not provide enough funding to carry out the powers

designated to the state. For example, in the 1990s, state revenues totaled approximately 80

percent of their expenditures.575 Thus, states must seek supplemental funding from the federal

government.

Royalties on natural resource extraction is another source of revenue for some states. Tereng-

ganu, Sabah, and Sarawak have received royalties for offshore natural gas and oil resources.

However those funds only amount to five percent of revenue from natural gas and oil, while

the federal government and private companies that finance exploration, development, and

production of oil and gas split the remaining profits.576 There have been several calls to allo-

cate a larger share of resources from natural resource extraction to the states, particularly giv-

en the states’ limited revenue generating opportunities.

The federal government transfers money to states through three mechanisms: grants, loans,

and development funds. There are two annual grants stipulated in the constitution, the Capita-

tion Grant, based on population, and the State Road Grant, based on the cost of maintaining

571

By withholding federal funds or refusing to amend the constitution. Fauzi, “Implementing Islamic Law,” 173, 176. 572

Francis Kok Wah Loh, “Restructuring Federal-State Relations in Malaysia: From Centralised to Co-operative Fed-

eralism?” The Round Table 99, no. 407 (April 2010): 133. 573

Hutchinson, “Malaysia’s Federal System,” 426. 574

MALAYSIA FEDERAL CONSTITUTION, 1957, Tenth Schedule, Part III. 575

Hutchinson, “Malaysia’s Federal System,”431. 576

In 2000, the federal government stopped providing royalties to Terengganu. The state subsequently tried to sue

the government for withholding funds, but the court found that the gas deposits on the continental shelf were out-

side Terengganu’s territorial jurisdiction. Sabah and Sarawak continue to receive funds, as their claim to the conti-

nental shelf was included when they joined the federation. See Wee Chong Hui, “Oil and Gas Management and Rev-

enues in Malaysia,” Presentation from Oil and Gas in Federal Countries, Forum of Federations (Edmonton, Alberta, 10

October 2008): 6.


119

roads in a given state.577 Significantly, the federal government has provided loans to states in-

stead of direct grants in recent years.578 Development funds are a third source of significant

financial support, but they are disbursed to states at the discretion of the federal govern-

ment.579 Fiscal transfers to states are a mechanism through which the federal government can

influence states directly since the provision of loans instead of outright grants makes states

indebted to the federal government and the discretionary disbursements of development

funds can be used to influence state policy and politics through financial rewards or punish-

ment.

SPECIAL FEATURE: STATE-SPONSORED ECONOMIC PLANNING AND GROWTH

In May 1969, ethnic-based riots broke out in Kuala Lumpur between Malays and Chinese-Malaysians,

with socioeconomic inequality between the two groups as the main driver. As a result of the riots, the

federal government enacted a series of economic and preferential policies, known as the National

Economic Policy (NEP), to try to reduce poverty and correct economic imbalances resulting from Brit-

ish colonial rule (for more on the preferential policies, see Executive—Inclusivity).† The main objectives

of the NEP and resulting policies were to guarantee representation of Malays in education and em-

ployment; eradicate poverty, especially among Malays; and reduce economic inequality between eth-

nic groups, ultimately aiming to strengthen national identity, reduce tensions, and thus maintain polit-

ical stability.‡

The State started to play a big role in Malaysia’s economy that continues to this day.

From 1970 to 1995, the Malaysian economy grew an average of 7.9 percentage points a year§ and

economic inequality between Malays and Chinese-Malaysians narrowed.# Both overall poverty and

Malay-specific poverty has decreased significantly.* However, wealth disparities between classes have

increased across all major ethnic groups, as has the income gap between rural and urban house-

holds.††

It is unclear whether preferential policies have helped to decrease inequality and poverty.‡‡

While a

growing middle class seems to be increasingly pluralistic and willing to work across ethnic lines in ser-

vice of economic growth, preferential policies also help maintain ethnic identity association.§§

In general, most ethnic groups in Malaysia have benefitted from the strong Malaysian economy.##

This

distributed economic expansion has moderated ethnic tensions, despite the potential for preferential

policies to heighten them.**

The fact that the centralized State government has consistently pursued a

coordinated, long-term economic policy has been cited as contributing to its economic success. †††

577

MALAYSIA FEDERAL CONSTITUTION, 1957, Tenth Schedule, arts. 1–3. 578

Hutchinson, “Malaysia’s Federal System,” 431–432. 579

Loh, “Restructuring Federal-State Relations in Malaysia,” 133–135.


120

† Max U Montesino, “Cross-cultural conflict and affirmative action: Inter- and intra-ethnic dilemmas of Malaysia’s

heterogeneous workplace,” International Journal of Cross Cultural Management 12, no. 1 (2011): 117.

‡ M. Shamsul Haque, “The Role of the State in Managing Ethnic Tensions in Malaysia: A Critical Discourse,” Ameri-

can Behavioral Scientist 47, no. 3 (2003): 252.

§ Sirimal Abeyratne, “Economic Development and Political Conflict: Comparative Study of Sri Lanka and Malaysia,”

South Asia Economic Journal 9, no. 2 (2008): 406.

# Montesino, “Cross-cultural conflict and affirmative action,” 128.

* Montesino, “Cross-cultural conflict and affirmative action,” 129; Haque, “The Role of the State,” 254.

†† Haque, “The Role of the State,” 257.

‡‡ Haque, “The Role of the State,” 254.

§§ Montesino, “Cross-cultural conflict and affirmative action,” 131; Haque, “The Role of the State,” 255–256.

## Abeyratne, “Economic Development and Political Conflict,” 409.

** Abeyratne, “Economic Development and Political Conflict,” 412.

††† Abeyratne, “Economic Development and Political Conflict,” 406; Md Nasrudin Md Akhir, Keum Hyun Kim, and

Chung-Sok Suh, “Structure and agency in the Malaysian government’s policies for economic development,” The

Economic and Labour Relations Review 24, no. 4 (2013): 512.

Assessment

Malaysia is a highly centralized State, and individual states have limited powers and resources.

Additionally, the federal government has at times undermined state policy through constitu-

tional amendments and fiscal policy. In theory the states of Sabah and Sarawak have greater

powers and financial resources than other states, however in practice they have had difficulties

collecting the revenues they are owed from the federal government, hindering their ability to

properly deliver services. On the other hand, perhaps because of its centralized structure, the

Malaysian State has been able to implement a series of economic development plans that

boosted growth and delivered economic benefits to all major ethnic groups in Malaysia, easing

tensions that may have otherwise resulted in violent conflict.

States have been able to maintain more control over Islamic law, where they have exclusive

authority. However where states have tried to implement legislation that would restrict citizens’

rights, the federal government has exerted increasing administrative control, resulting in a

constant debate between the states and federal government where each provides a check on

the other.


Members of the House of Representatives and state legislative assemblies are elected using the

first-past-the-post system. All other positions are appointed, indirectly elected, or inherited. The

political coalition in power has influenced electoral districts to retain control since independ-

ence. However, opposition parties have won an increasing number of seats in the two most re-

cent elections, indicating that citizens view electoral politics as an important means of expressing

their political preferences.


121

a. System design

Within the executive, the prime minister is appointed by the king from the majority party in the

House of Representatives, and must be a citizen by birth.580

The rulers within the Conference of Rulers elect a king (Yang di-Pertuan Agong) and deputy king

(Timbalan Yang di-Pertuan Agong) from among themselves for a five-year term.581 In practice,

the monarchy is a rotating office among the rulers.582

The House of Representatives (the lower house in the national parliament) and the state legis-

lative assemblies are the only institutions whose members are directly elected. In these elec-

tions, representatives are elected by plurality vote from single-member constituencies (also

known as ‘first-past-the-post’ or FPTP). There are 222 members of the House of Representa-

tives.583

The Senate (the upper house in parliament) includes 70 members, 44 of whom are appointed

by the king in consultation with the prime minister.584 Four of those members must be repre-

sentatives from the federal territories.585 State legislative assemblies elect the remaining 26

members (each state elects two members via majority vote).586

Under the 1957 constitution, most senators were elected by the state assemblies. A 1963

amendment changed the ratio of senators appointed versus those elected by the states so

that more were appointed.587 The fact that almost two-thirds of the Senate is appointed by the

executive means that rather than the Senate representing the states, it has consistently

aligned with the executive.588

580

MALAYSIA FEDERAL CONSTITUTION, 1957, art. 43(2a)(7). 581

MALAYSIA FEDERAL CONSTITUTION, 1957, art. 32(3). 582

MALAYSIA FEDERAL CONSTITUTION, 1957, Third Schedule, arts. 1–4. 583

Government of Malaysia, Elections Act 1958, Act 19, August 28, 1958, art. 13. 584

Qualifications for appointment include those who “have rendered distinguished public service or have achieved

distinction in the professions, commerce, industry, agriculture, cultural activities or social service or are representa-

tive of racial minorities or are capable of representing the interests of aborigines.” Senators do not have to be

members of a political party. MALAYSIA FEDERAL CONSTITUTION, 1957, art. 45(1). 585

Two members are from Kuala Lumpur, one member is from Labuan, and one member is from Putrajaya. MALAY-

SIA FEDERAL CONSTITUTION, 1957, art. 45(1). 586

See Seventh Schedule, Article 2 of MALAYSIA FEDERAL CONSTITUTION. Seats are decided by majority vote; each mem-

ber of a state legislative assembly has as many votes as there are seats. If there is a tie, a winner is chosen by lot. 587

John Funston, “Malaysia: Developmental State Challenged,” In John Funston (Ed.), Government and Politics in

Southeast Asia (Singapore: Institute of Southeast Asian Studies, 2001): 180. 588

Rainer Grote and Tilmann Röder, Constitutionalism in Islamic Countries: Between Upheaval and Continuity (Oxford:

Oxford University Press, 2012): 308.


122

At the state level, hereditary rulers govern nine of the 13 states. The constitution allows them

to choose their own successors.589 Four of the states have governors instead of rulers, who are

appointed by the king.590


The Election Commission is mandated to conduct elections for the House of Representatives

and the Legislative Assemblies of the states.591 The king appoints the members of the Election

Commission after consultation with the Conference of Rulers.592

The constitution includes specific provisions that guide how electoral districts are drawn. One

constitutional requirement is that the size of constituencies in electoral districts should be rela-

tively equal.593 However, the constitution also states that rural voters face disadvantages and

thus constituencies should be weighted accordingly.594 Although the constitution originally re-

quired that constituencies differ no more than 15 percent in population size, constitutional

amendments in 1962 and 1973 did away with this requirement.595 Modification of electoral dis-

tricts has led to extremely uneven population distribution between districts, to the advantage

of ethnic Malays and the coalition in power.596 In 2013, the Pakatan Rakyat (PR, People’s Alli-

ance) opposition coalition won 50.9 percent of the popular vote compared to 47.4 percent for

the ruling BN.597 However, BN retained its majority in parliament and the premiership because

of the way in which the population was distributed among constituencies. Additionally, there

were substantial irregularities in early voting, vote counting, and voter rolls in the 2013 elec-

tions.598


There are no provisions in Malaysia’s constitution or electoral legislation to promote represen-

tation of minorities or women. There has been some attention to increasing the number of

women political representatives, but at the national level the percentage of women in parlia-

ment has remained steady at approximately ten percent since 2000.599 There has been sup-

589

MALAYSIA FEDERAL CONSTITUTION, 1957, Eighth Schedule, art. 1 (2e). 590

States with governors are Malacca, Penang, Sabah, and Sarawak. MALAYSIA FEDERAL CONSTITUTION, 1957, Eighth

Schedule, art. 19a (1)(2). 591



MALAYSIA FEDERAL CONSTITUTION, 1957, Thirteenth Schedule, Part I (2c) 594

MALAYSIA FEDERAL CONSTITUTION, 1957, Thirteenth Schedule, Part I (2c). 595

ACE Electoral Knowledge Network, “Malaysia: Malapportioned Districts and Over-Representation of Rural Com-

munities,” in The ACE Encyclopaedia: Boundary Delimitation (2012): 160. 596

ACE Electoral Knowledge Network, “Malaysia: Malapportioned Districts,” 160. 597


Welsh, “Malaysia’s Elections,” 140–141. 599

The World Bank Open Data, “Proportion of Seats Held by Women in National Parliaments: Malyasia,” World Bank

Group, https://data.worldbank.org/indicator/SG.GEN.PARL.ZS?locations=MY.


123

port for increased participation of women in decision-making roles within some individual po-

litical parties, specifically the PKR (People's Justice Party) and the DAP (Democratic Action Par-

ty).600 The PKR officially incorporated a 30 percent quota for women in decision-making roles

into its constitution.601

Assessment

The system of election and selection in Malaysia does not contribute significantly to improving

equity of representation. The FPTP system, coupled with significant Senate appointments and

electoral districts that may be changed by the political coalition in power, enables minority

voices to be crowded out. This drawback to the electoral design was highlighted in the results

of the 2013 election when the BN lost the popular vote but retained a majority in parliament.

Despite the drawbacks in electoral design, Malaysian citizens seem to view elections as a

means of expressing their political preferences. The opposition coalition won significantly more

seats in the 2013 elections than in 2008, and the need for electoral reform galvanized civil so-

ciety protests beginning in 2007 and continuing in more recent years.602 (See Public Participa-

tion.)

3. EXECUTIVE BRANCH

Executive authority in Malaysia is divided between the king, prime minister, and the cabinet at

the national level. Hereditary rulers govern nine of the 13 states, while governors head the other

four. In practice, the role of the king is largely ceremonial and the prime minister has accumu-

lated extensive powers. A number of ‘special rights’ are reserved for Malays, which have im-

proved Malay representation and economic opportunity, although often to the exclusion of non-

Malays.


Executive authority is vested in the king, prime minister, and cabinet.603 The king is head of

State and commander in chief, and the prime minister is head of the government.604

The powers of the king are limited given that the constitution requires the king to “act in ac-

cordance with the advice of the Cabinet or Minister…under the general authority of the Cabi-

600

Cecilia Ng, “The Hazy New Dawn: Democracy, Women, and Politics in Malaysia,” Gender, Technology and Develop-

ment 14, no. 3 (2010): 315. 601

Ng, “The Hazy New Dawn,” 315. 602



MALAYSIA FEDERAL CONSTITUTION, 1957, arts. 32 (1) and 41.


124

net.”605 However, the king has discretion over the selection of the prime minister and can re-

frain from dissolving parliament despite a request from the prime minister.606 The king also is

responsible for protecting the special status of Malays and indigenous peoples of Sabah and

Sarawak as well as “legitimate interests” of other communities.607 In practice, the king has come

to be a largely ceremonial post.

The prime minister advises the king on appointments of members of the cabinet from either

the House or the Senate.608 As head of the cabinet, the prime minister can ask the king to dis-

miss any of its members.609

A unique body within the Malaysian executive is the Conference of Rulers. It consists of the

nine hereditary rulers and the four governors of each state. The primary function of the Con-

ference of Rulers is to elect the king.610 Many of the Conference’s other responsibilities are

consultative in nature: members discuss questions of national policy at their discretion and the

implementation of religious acts and observances.611 The Conference must be consulted on

changes to the special status of Malays and indigenous peoples of Sabah and Sarawak.612 (See

Traditional and Customary Arrangements.)

The state-level executive includes a hereditary ruler in nine of the 13 states and a governor in

the other four states. The state-level executive operates similarly to the federal-level executive.

A ruler holds absolute discretion in selecting the chief minister from among the legislative as-

sembly, but otherwise must follow the advice of the chief minister and executive council.613 A

ruler may also withhold his or her consent on a request to dissolve the legislative assembly.

Additionally, the rulers serve as religious leaders within their states and exercise autonomy in

regards to decisions as head of Islam or relating to Malay custom. (See Traditional and Custom-

ary Arrangements.) Governors perform the same functions as rulers except they do not exer-

cise religious authority. Governors serve four-year terms and can be removed from office by

the king after a two-thirds majority vote by the state legislature.614

605

MALAYSIA FEDERAL CONSTITUTION, 1957, art. 40 (1). 606





Only the nine rulers, not the governors, participate in the election. MALAYSIA FEDERAL CONSTITUTION, 1957, Fifth

Schedule (7). 611

MALAYSIA FEDERAL CONSTITUTION, 1957, art. 38 (2) (3). 612


MALAYSIA FEDERAL CONSTITUTION, 1957, Eighth Schedule, art. 1 (2). 614

MALAYSIA FEDERAL CONSTITUTION, 1957, Eighth Schedule, art. 19a (2).


125


The prime minister and the cabinet ultimately are responsible to the House of Representatives;

if the House of Representatives passes a vote of no confidence, then the entire cabinet must

resign.615 However, the House of Representatives has never passed a vote of no confidence, in

part because the BN has held a two-thirds majority in the House after almost every election

since independence. As a result of BN’s legislative dominance and other factors, the depart-

ment of the prime minister has accumulated extensive powers.616

Based on the constitutional design, various members of the executive serve as a system of

checks and balances on each other. As noted above, the king has discretion over the selection

of the prime minister, and the Conference of Rulers select and can remove a king from power.

In practice, members of the executive have not served as checks on each other. The Confer-

ence of Rulers has never removed a king and the king is a largely ceremonial post in compari-

son to the prime minister. Under Dr. Mahathir Mohamad, who served as prime minister from

1981 to 2003, the executive was strengthened significantly in comparison to other political in-

stitutions.617

c. Inclusivity

Individuals who are recognized as Malay receive special constitutional recognition and are eli-

gible for certain privileges, or ‘special rights’, including quotas or affirmative action policies for

positions in public service, scholarships, business opportunities, and other educational/training

programs.618 In the civil service, the ratio between Malays and non-Malays is 4:1.619 Additionally,

many of the founding members of the UMNO were civil servants, and the UMNO continued to

cultivate relationships within the civil service in the postindependence period.620 Thus, through

different channels, Malays hold privileged positions in society, generally, and within the civil

service, specifically.

Special rights for Malays were established to try to manage ethnic tensions and to counter

economic and professional benefits Chinese-Malaysians and Indian-Malaysians received under

615


See H.F. Rawlings, “The Malaysian Constitutional Crisis of 1983,” The International and Comparative Law Quarterly

35, no. 2 (April 1986): 248–249 for discussion of the relationship between BN’s legislative dominance and the prime

minister’s attempts to curtail the powers of the king and Conference of Rulers. Also see Hutchinson, “Malaysia’s Fed-

eral System,”430 and Bridget Welsh, “Malaysia in 2004: Out of Mahatir’s Shadow?” Asian Survey 45, no. 1 (Janu-

ary/February 2005): 154 for characterizations of ‘Mahathirism’. 617

Welsh, “Malaysia in 2004,” 154. Also see Hutchinson, “Malaysia’s Federal System,” 430 and Loh, “Restructuring

Federal-State Relations in Malaysia,” 133 on the increased role of the prime minister’s department. 618


Haque, “The Role of the State,” 247. 620

Hutchinson, “Malaysia’s Federal System,” 428.


126

the British colonial period.621 Since the institution of preferential policies, Malay representation

in the public service and various professional services has increased considerably, so much so

that significant public sectors are dominated by Malays, and Malays are overrepresented in the

public education system.622 Ethnic Indians, by contrast, are among the poorest and most politi-

cally underrepresented, which many argue is a result of the preferential policies.623 While most

Malays approve of the system of special rights, Chinese- and Indian-Malaysians see them as

discriminatory, and preferential policies seem to have contributed to an entrenchment of eth-

nic identities.624 Major ethnic conflict has not broken out since the ethnically based riots in

1969; however, consistent economic growth and Malaysia’s strict prohibitions against racial

violence are more likely the reasons for relative stability than Malaysia’s system of preferential

policies.625 In fact, had these policies been implemented in a stagnant economic environment,

feelings of exclusion might have led to increased tensions.626 (See Political Structure—Special

Feature: State-sponsored Economic Planning and Growth.)

Individuals who qualify as ‘natives’ or members of groups indigenous to the states of Sabah

and Sarawak are also eligible for privileges according to the constitution.627 However, while

specific individuals from these groups may receive privileges, the indigenous populations of

Sabah and Sarawak have not benefitted collectively in the ways that Malays have.

Assessment

On paper, Malaysia’s executive branch appears to favor equity of representation and decision

making. Executive authority is divided between the king, the prime minister, and the cabinet,

and there is a system of checks and balances between different political offices. The inclusion

of the Conference of Rulers within the executive ensures that traditional leaders are repre-

sented at the federal level.

In practice, the king is largely ceremonial and not representative of much of the population.

The powers of the prime minister have greatly expanded, and there are few effective checks

and balances on the executive.

621

Haque, “The Role of the State,” 244–245. 622

Chinese- and Indian-Malaysians tend to go to private schools. Haque, “The Role of the State,” 252–253 and Mon-

tesino, “Cross-cultural conflict and affirmative action,” 125. 623

Montesino, “Cross-cultural conflict and affirmative action,” 125. 624

Montesino, “Cross-cultural conflict and affirmative action,” 125 and Haque, “The Role of the State,” 256, 258. 625

Haque, “The Role of the State,” 256 and Montesino, “Cross-cultural conflict and affirmative action,” 122–123. 626

Abeyratne, “Economic Development and Political Conflict,” 412. 627

In Sarawak, a ‘native’ is defined as a citizen who is a descendant of a recognized indigenous group. In Sabah, a

‘native’ is a citizen who is the child or grandchild of persons belonging to an indigenous group in Sabah and was

born in Sabah or whose father was born in Sabah. MALAYSIA FEDERAL CONSTITUTION, 1957, art. 161A(6).


127


Malaysia’s parliament is composed of the House of Representatives and the Senate. The Senate

represents the states and federal territories. The two chambers are responsible for introducing

and approving legislation, while the king enacts legislation. The ruling coalition BN dominated

parliament for decades; however, electoral victories in 2008 and 2013 made parliament more

representative and inclusive.


At the federal level, the constitution vests legislative authority in a bicameral parliament and

the king.628 The House of Representatives and the Senate are primarily responsible for intro-

ducing and approving legislation, while the king’s role is to enact legislation after both cham-

bers complete the review process.

The House of Representatives (the lower house) has 222 members who are popularly elected

for five-year terms.629 It is led by a speaker and two deputies.630 The Senate (the upper house)

has 70 members who serve three-year terms.631 Senators are not permitted to serve more

than two terms.632 The Senate is led by a president and deputy who are elected from among

the members of the House.633

At the state level, the legislative process includes a ruler/governor and a unicameral legislative

assembly.634 The legislative assemblies vary in size; however, they share the same legislative

powers. Legislation can be introduced by members of the assembly or members of the execu-

tive council. Only the executive council member responsible for finance may introduce money

bills.635 Once a bill is passed by the assembly, it is referred to the ruler or governor for enact-

ment.636

628


The term may be cut short, if the House is dissolved by the king. 630

MALAYSIA FEDERAL CONSTITUTION, 1957, art. 57 (1a). 631


MALAYSIA FEDERAL CONSTITUTION, 1957, art. 45 (3a). 633


MALAYSIA FEDERAL CONSTITUTION, 1957, Eighth Schedule, art. 3. 635

Money bills are those concerning taxation or government spending and relating to allocating revenue. MALAYSIA

FEDERAL CONSTITUTION, 1957, Eighth Schedule, art. 11 (2). 636

MALAYSIA FEDERAL CONSTITUTION, 1957, Eighth Schedule, art. 11 (1).


128


A bill may originate in either chamber of parliament. Once a bill is passed in the first chamber,

it is referred to the other chamber for approval and then sent to the king to approve.637 The

king has 30 days to approve a bill or to return it to parliament for further consideration.638 If

returned to parliament, the bill must be reconsidered by each house. If passed by both hous-

es, it returns to the king, who has another 30 days to assent to it. After 30 days, regardless of

whether the king has assented to the bill, it becomes law.639

Decisions in both the House of Representatives and Senate are made by majority vote, with

the president or speaker providing the tiebreaking vote as needed. 640 Constitutional amend-

ments require a two-thirds majority to be approved.641 Parliament may not introduce bills re-

lating to Islamic law, Malay custom, native law, or custom in Sabah and Sarawak without first

consulting the state government(s) concerned.642 Members of the cabinet have the right to

take part in parliamentary proceedings, but do not have voting rights.643

Parliament has frequently amended the constitution due to the BN’s maintaining a two-thirds

majority. Parliament passed 34 constitutional amendment acts, which each included many in-

dividual amendments, in the period 1957 to 1994.644 Significantly, BN lost its two-thirds majori-

ty in the 2008 elections and has not regained it in subsequent elections.645


The king serves as a check on the legislature given that his approval is required to enact legisla-

tion. However, this is not ultimate veto power, as legislation can be passed by a normal majori-

ty in both houses. It is unclear the extent to which the king withholds assent in practice.

The ability of parliament to amend the constitution with approval of a two-thirds majority has

had a significant impact on the Malaysian political system since BN has almost always held a

two-thirds majority. In this period, BN parliamentarians passed a significant number of consti-

tutional amendments, many of which benefitted their political coalition.

637

MALAYSIA FEDERAL CONSTITUTION, 1957, art. 66 (2) (3). 638


MALAYSIA FEDERAL CONSTITUTION, 1957, art. 66 (4b). 640

MALAYSIA FEDERAL CONSTITUTION, 1957, art. 62 (3) states that if the Speaker of the House was not originally a mem-

ber of the House, he shall not provide the-tie breaking vote. 641




Harold Crouch, “The Institutional Pillars of the State,” in Government and Society in Malaysia (Ithaca and London:

Cornell University Press, 1996): 138. 645

Hutchinson, “Malaysia’s Federal System,”428.


129

Assessment

Malaysia’s 222-member House is one of the two political institutions where constituents elect

representatives directly, and the members of the Senate are supposed to be broadly repre-

sentative of the states and federal territories. However, given that almost two-thirds of the

Senate is appointed, members are not always representative and the Senate is often seen as a

rubber stamp for the executive. For decades, the BN dominated parliament and used its con-

trol of the legislature to entrench its political coalition. The electoral victories of PR in 2008 and

2013, however, has made parliament a more representative, inclusive institution.


There are few channels through which the public can participate meaningfully in the Malaysian

political system. Laws discourage participation in political life, and there are relatively few op-

portunities for citizens to elect political representatives. However, some citizens and civil society

groups began to demand electoral reforms in 2007, with results to date indicating that opportu-

nities for citizens to voice their interests may slowly increase.


There are no formal provisions in the constitution for public participation. The proceedings of

the Conference of Rulers are secret and are not published.646


Not only are there no provisions in the constitution for public participation, but in fact laws

have been used to suppress public participation since independence. The Official Secrets Act

enables the government to classify information as secret and not available to the public;647 the

Sedition Act makes it illegal to question the status of Malay rulers and special privileges of the

Malay community;648 and the Internal Security Act allows for indefinite detention without tri-

al.649 All of these laws have been used to suppress public participation historically and in recent

years.

Despite these laws, citizens have mobilized significant popular protests to demand electoral

reform. In November 2007, more than 30,000 Malaysians demonstrated in the streets.650 After

646

Virtual Malaysia, “The Conference of Rulers,” VirtualMalaysia.com,

http://www.virtualmalaysia.com/visit_malaysia/government/conference.cfm. 647

Loh, “Restructuring Federal-State Relations in Malaysia,” 138. 648

Khoo Boo Teik, “Nationalism, Capitalism, and ‘Asian Values’,” in Democracy in Malaysia: Discourses and Practices,

eds. Francis Loh Kok Wah and Khoo Boo Teik (Richmond, Surrey: Curzon Press, 2002): 59. 649

Khoo Boo Teik, “Nationalism, Capitalism, and ‘Asian Values’,” 59. 650

Welsh, “Malaysia’s Election’s,” 138.


130

the 2008 elections, a coalition of more than 60 civil society groups called the Coalition for

Clean and Fair Elections (Bersih) organized to promote civic education and continue public

demonstrations in 2011 and 2012.651 The public demands for electoral reform culminated in

22 proposed reforms by a parliamentary committee.652 However, the public generally did not

trust in the proposed reforms, many of which proved to favor the government in power in the

2013 elections.653

Assessment

There are few channels through which the public can participate meaningfully in the Malaysian

political system. There are no formal provisions for public participation, legislation discourages

it, and there are relatively few opportunities for citizens to elect political representatives. Yet

Malaysians have embraced elections as a significant means of political participation and some

have begun to demand electoral reforms. The limited reforms proposed by the parliamentary

committee prior to the 2013 elections and the significant support for the opposition coalition

in the elections signal that the Malaysian political system may slowly become more participa-

tory as a result of popular demands.


Islam is the official religion of Malaysia, although the constitution also upholds religious free-

dom. Hereditary rulers are included in governance institutions at the federal and state levels

with some executive and legislative responsibilities. Malaysia has a dual court system of civil

courts, with jurisdiction over civil and criminal matters, and Sharia courts, with jurisdiction over

personal law for Muslims. These arrangements attempt to mediate between diverse ethnic and

religious interests, although, in practice, they have often increased tensions.

651

Welsh, “Malaysia’s Election’s,” 138. 652

Welsh, “Malaysia’s Election’s,” 139. 653

Welsh, “Malaysia’s Election’s,” 139.


131

SPECIAL FEATURE: ISLAM AND OTHER RELIGIONS IN MALAYSIA

Islam is the official religion of the federation, although the constitution upholds religious freedom,

providing every person the rights to profess, practice, and propagate his/her religion within the State.†

The constitution guarantees freedom from religious discrimination and the right of every religious group

to establish religious educational institutions.‡

However, Islam and other religions remain highly regulated by Malaysian states. Muslims are required to

practice Islam within a set of State-defined rules. For example, only practices falling within a specific type

of Sunni Islam are permitted, causing problems for Muslims from other traditions who have other prac-

tices, such as Shiites and Sufis.§ Muslims are not allowed to officially change religions or leave Islam

without permission from a Sharia court.# The practice of Islam in Malaysia, which was historically plural-

ist, has become increasingly restrictive.*

There are also a number of laws regulating the practice of religions other than Islam, including re-

strictions on publishing Malay-language Bibles and limitations on the number of non-Muslim places of

worship in a given geographical area.††

Many states have also taken advantage of a constitutional clause

that allows state law to restrict other religious groups from proselytizing Muslims.‡‡

The government’s

commitment to religious freedom has been questioned on several occasions, particularly regarding

Muslims converting to other religions and the general right to practice and propagate other religions.§§

The constitution also specifies in the definition of a Malay person that he or she practices Islam.##

This

has served to conflate ethnic and religious identity, and as calls for greater incorporation of Islam into

the State have become more common, the religious divide between Muslims and non-Muslims (and be-

tween Malay and non-Malay) has aggravated ethnic tensions.**

† MALAYSIA FEDERAL CONSTITUTION, 1957, art. 3 (1), 11 (1).

‡ MALAYSIA FEDERAL CONSTITUTION, 1957, art. 12 (1)(2).

§ Fauzi, “Syariahization,” 39.

# In 2007, the Malaysian Federal Court ruled that Muslims must obtain a certificate from a Sharia court to leave the

religion. However, Sharia law does not allow Muslims to leave Islam; instead, the law requires fines, forced rehabilita-

tion, or jail time for such a request. See Baradan Kuppusamy, “No Freedom of Worship for Muslims Says Court,” In-

terPress Service (31 May 2007), http://ipsnews.net/news.asp?idnews=37973. * Fauzi, “Syariahization,” 35.

†† Sean Yoong, “Malaysian church slams Islamic officials over raid,” Boston Globe (4 August 2011),

http://www.boston.com/news/world/asia/articles/2011/08/04/malaysia_church_slams_islamic_officials_over_raid/?rss

_id=Boston.com+%2F+Boston+Globe+--+World+News.

‡‡ MALAYSIA FEDERAL CONSTITUTION, 1957, art. 11(4). Also see Freedom House, “Freedom in the World—Malaysia” (2010),

http://www.freedomhouse.org/template.cfm?page=363&year=2010&country=7869. §§

Freedom House, “Freedom in the World—Malaysia.” ##

MALAYSIA FEDERAL CONSTITUTION, 1957, art. 160(2). **

Jaclyn Ling-Chien Neo, 96.


132


The king and rulers serve as symbols of Malay identity, due to both the king’s responsibility for

protecting the special statuses of Malays and of the indigenous peoples of Sabah and Sarawak

and to the roles rulers historically played. The rulers also represent their states in dealings with

the federal government and can resolve disputes between the two levels.654

Islamic religious authority is vested in the rul-

ers.655 The constitution recognizes the rulers as

the heads of Islam and Malay custom in their re-

spective states, with the king as the head of Islam

and Malay custom for his state as well as the

states without rulers and the territories.656 At the

federal level, the inclusion of the Conference of

Rulers in the executive integrates traditional and

customary arrangements into the government

and also recognizes the religious authority of the

rulers within the political system.


The Conference of Rulers serves as an advisory body to parliament. The consent of the confer-

ence is necessary for legislation to become law on issues relating to appointments to im-

portant posts; laws altering boundaries of states; laws affecting the “privileges, position, honors

or dignities of the Rulers”; and “religious acts, observances, or ceremonies” applicable at the

national level.657 The Conference must also be consulted on any changes to the special status

of Malays and other indigenous groups.658


Malaysia has a dual court system: civil courts have jurisdiction over civil and criminal matters,

as well as non-Islamic customary law where applicable.659 Sharia courts have exclusive jurisdic-

tion over a number of competencies, but only as they pertain to Muslims. These competencies

include personal and family law, charitable and religious trusts/endowments, Malay customs,

654

Harding, “Sovereigns Immune?” 306, 312; Virtual Malaysia, “The Conference of Rulers.” 655


MALAYSIA FEDERAL CONSTITUTION, 1957, arts. 3, (3)(5) and 34 (1). 657

MALAYSIA FEDERAL CONSTITUTION, 1957, art. 38 (6) (2b) (4) 658

MALAYSIA FEDERAL CONSTITUTION, 1957, art. 38 (5) 659

Jaclyn Ling-Chien Neo, 100 and Yeoh Seng Guan, “Managing sensitivities: Religious pluralism, civil society, and

inter-faith relations in Malaysia,” The Round Table: The Commonwealth Journal of International Affairs, 94:382, 633.


Islam and Religious Freedom

While the constitution recognizes Islam as the

official State religion, it also protects religious

freedom. On paper, Malaysia’s treatment of

religious and customary arrangements is an

example of political accommodation. In prac-

tice, there have been widespread accusations

against the State for restrictive and discrimina-

tory policies on religious practice.


133

mosques, and punishment for Islamic offenses.660 The states are responsible for the organiza-

tion of these courts and each state has its own system of Islamic religious administration.661


The constitution grants indigenous populations in Sabah and Sarawak access to a set of special

land-leasing rights. These states have the authority to recognize indigenous ownership over

land, ranging from individual indigenous titles to communal indigenous titles.662 In Sarawak, the

subnational state recognizes five different ways indigenous communities can claim ownership

over land. Subnational state ministers have the power to revoke these rights, however, and

systems have been put in place to expropriate land owned by indigenous populations.663 While

Sabah and Sarawak have systems to recognize indigenous claims to land, that recognition does

not necessarily mean that the land will not be reclassified for development (including timber

and palm oil production) in line with Malaysia’s ambitious ‘New Economic Model’ which strives

to have Malaysia fully industrialized by 2020.664 Furthermore, states do not always recognize

indigenous methods of establishing ownership and can require that indigenous peoples meet

a number of bureaucratic hurdles, including obtaining documentary proof of ownership, to

recognize native customary rights over the land.665

Assessment

The inclusion of hereditary rulers in governance institutions at the federal and state levels,

along with the integration of Islam into governance structures, reinforces the special protec-

tions granted ethnic Malays. Recognition of religious freedom, combined with the parallel use

of Sharia and civil law, attempts to accommodate a multitude of faith traditions. However, pro-

tections for ethnic Malays, combined with an increase in Islamic laws and religious restrictions,

660

MALAYSIA FEDERAL CONSTITUTION, 1957, Ninth Schedule, List II (1). Shari’a Courts (Criminal Jurisdiction) Act of 1965

provides Sharia Courts with the power to try Islamic offenses as long as the maximum punishment does not exceed

a three-year imprisonment, Rm5000 fine, and six lashes. (See Article 2 of the Act). 661

MALAYSIA FEDERAL CONSTITUTION, 1957, Ninth Schedule, List II (1). 662

Su Mei Toh and Kevin T. Grace, “Case study from Malaysia: Sabah Forest Ownership,” Understanding forest tenure

in South and Southeast Asia, Forestry Policies and Institutions Working Paper 14, Food and Agriculture Organization

of the United Nations (2006). 663

The five recognized ways to claim ownership are occupying cleared land, planting land with fruits, occupying cul-

tivated land, using land as a burial ground, and using land for right of way. Ramy Bulan, “Native Customary Land. The

Trust as a Device for Land Development in Sarawak,” State, Communities and Forests in Contemporary Borneo, Fadzilah

Majid Cooke ed. (Canberra: ANU E Press, 2006): 49. 664

The ‘New Economic Model’ is a package of reform initiatives that are meant to propel Malaysia toward the goals

set forth in ‘Vision 2020’. See: Yogeswaran Subramaniam, “Affirmative action and the legal recognition of customary

land rights in peninsular Malaysia: the Orang Asli experience,” Australia Indigenous Law Review 17, no. 1 (2013): 112. 665

Ramy Bulan and Amy Locklear, “Legal Perspectives on Native Customary Land Rights in Sarawak,” Human Rights

Commission of Malaysia (SUHAKAM), 2008, http://www.suhakam.org.my/wp-content/uploads/2013/12/Legal-

Perspectives.pdf.


134

have increased tensions between different ethnic groups. Since the rulers are hereditary, male,

and ethnically Malay, they are not very representative of the diversity of the country.

Conclusion

The Malaysian State is highly centralized, with the national government afforded significant

powers and controlling the vast majority of revenue streams so that most states have little au-

tonomy. While the states of Sabah and Sarawak are exceptions, with constitutionally recog-

nized powers and independent sources of revenue, many of these powers have not been fully

implemented. Significant authority has been consolidated in the office of the prime minister,

and the king has become a largely ceremonial post. The FPTP electoral system, combined with

Malaysia’s management of electoral districts, means the ruling party has managed to stay in

power since independence. Opportunities for meaningful public participation are limited.

However, one area in which states have been able to maintain more authority is in the mainte-

nance of Islamic law, which is officially within states’ exclusive authority. The federal govern-

ment has, however, exerted increasing administrative control in this realm, resulting in a con-

stant debate between the states and federal government in which each provides a check on

the other.

Interestingly, the centralized Malaysian State was able to implement a series of economic de-

velopment plans that consistently boosted growth for a number of years and delivered eco-

nomic benefits to all major ethnic groups in Malaysia, easing tensions that other elements of

the political system can heighten and which may have otherwise resulted in violent conflict.

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HOW GOVERNANCE FUNCTIONS | NIGERIA

137

NIGERIA

Executive Summary

This case study focuses on Nigeria’s governance arrangements analyzed through the lens of









Nigeria has struggled to achieve political accommodation since its independence. The country

is home to a large, diverse population and there is significant competition over Nigeria’s natu-

ral resources, particularly oil wealth. Corruption within the political system is endemic.

Despite these challenges, various mechanisms exist within the political system that support

accommodation. For example, the constitution requires equality of representation within gov-

ernment institutions through a clause known as the federal character principle. The national-

and state-level executives are elected by majority vote with a parallel consent mechanism,

meaning the winning candidate must receive an overall majority plus a percentage of votes

across geographical areas. Additionally, states have the authority to decide whether secular,

Islamic, or customary law, or a hybrid system is applied by the judiciary, to accommodate Nige-

ria’s religious diversity.

Table 8—Accommodating and Less Accommodating Aspects in Nigeria


NIGERIA

Parallel consent voting for executive

leadership‡

Diverse and inclusive executive bodies

Mechanisms for public participation§

Subnational control over Islam and local

judicial systems

Significant corruption



Legislature has low capacity

‡ The winning candidate is the candidate who receives a majority of votes in the election plus no less than 25

percent of votes cast in at least two-thirds of the states and the federal capital territory (Abuja), or in the case of

governors, no less than 25 percent of votes cast in all local government areas in the state.

§ However, citizens’ ability to recall an elected official can be manipulated by elites to exert influence over a legis-

lator.


138

Background

Nigeria is a populous country and home to large Muslim and Christian communities. With

more than 182 million inhabitants as of 2015,666 the country has the largest population on the

African continent. As of 2010, Nigeria’s estimated Muslim population of 77 million represented

approximately 48.8 percent of the country’s total population,667 and the estimated Christian

population of 78 million668 represented approximately 49.3 percent of the total population.669

Nigeria’s religious communities are relatively segregated along geographical lines. The north-

ern region of Nigeria has its roots in an Islamic caliphate and is primarily Muslim; the southern

region is primarily Christian, while the middle belt is a mix of Muslim, Christian, and other reli-

gions.

There are also hundreds of ethnic groups in Nigeria. The three major groups are the Igbo in

the southeast, the Yoruba in the southwest, and the Hausa and Fulani in the north. In the

southernmost part of Nigeria, known as the south-south, there is a diverse mix of ethnic and

linguistic groups.

Nigeria has experienced political tensions that have escalated to violence in a number of in-

stances since its independence from Britain in 1960. During the civil war from 1967 to 1970,

the Igbo attempted to secede from Nigeria but were defeated militarily. In recent years, Boko

Haram, an armed Islamic group, has fought to establish itself in northern Nigeria. In the south-

ern Niger Delta area, an abundance of oil resources has fueled competition and conflict. Some

conclude that Nigeria has existed in a state of low-grade civil war with persistent violence since

the end of the civil war in 1970.670 Others describe Nigeria as a “one of the most deeply divided

states in Africa” which leads to elevated levels of violence.671 The military controlled the gov-

ernment for most years from independence until 1999, when it ceded power to civilian leader-

ship. The civilian government remains today, although political tensions and armed violence

continue.




666

World Bank, “World Bank Open Data Project: Population, total, Nigeria,”

http://data.worldbank.org/indicator/SP.POP.TOTL/countries/NG?display=graph. 667

Pew Research Center, The Future of World Religions: Population Growth Projections, 2010–2050 (2 April 2015): 74. 668

Pew Research Center, The Future of World Religions, 63. 669

Pew Research Center, The Future of World Religions, 62. 670

Siri Aas Rustad, “Power-sharing and Conflict in Nigeria: Power-sharing Agreements, Negotiations and Peace Pro-

cesses,” Center for the Study of Civil War International Peace Research Institute (2008): 1. 671

Eghosa E. Osaghae and Rotimi T. Suberu, “A History of Identities, Violence, and Stability in Nigeria,” Center for Re-

search on Inequality, Human Security and Ethnicity, CRISE working paper No. 6 (January 2005): 4.


139










3. Executive branch




Decisions in one Strand affect how all the others function in practice. Accordingly, it is im-

portant to consider their relationships and develop options that represent coherent choices

across all the Strands.


Nigeria has used specific mechanisms that promote accommodation of different interests.



While Nigeria is a federal political system, Nigerian states lack the degree of autonomy that typi-

cally characterizes federal systems. The current constitution assigns substantial powers to the

national government while reserving no exclusive powers for the states. States’ dependence on

the national government for financial resources further limits their autonomy. Although the

overarching political structure does not distribute decision-making power, the process of state

creation stands out as a means of enabling citizens to have a voice in governance arrangements.

a. Structure

Nigeria is a federal political system that consists of 36 states and the federal capital territory–

Abuja (FCT–Abuja).673 The 1999 Constitution of the Federal Republic of Nigeria establishes

672


purport to represent, the interests of a constituency, by election, appointment, or inheritance. 673

CONSTITUTION OF NIGERIA (1999), § 2 cl. 1–2.


140

three levels of government within the federal system: national, subnational, and local. Branch-

es of government include the national executive, the national legislature, subnational execu-

tives, subnational legislatures, and local government councils.

At the national level, the constitution sets out a presidential system.674 In addition to the presi-

dent, the national executive includes the office of the vice president and the cabinet.675 The

national legislature, known as the National Assembly, is bicameral, with a Senate and a House

of Representatives.676

At the subnational level, executive authority of each state is vested in the office of an elected

governor.677 The constitution mandates that each state have its own legislature, or House of

Assembly, with 24 to 40 members, depending on the population size of the state.678

Figure 10—Nigeria’s Political Structure

The constitution requires that each state establish a legal framework for a system of local gov-

ernment. Democratically elected local government councils are guaranteed under the constitu-

674

CONSTITUTION OF NIGERIA (1999), § 5 cl. 1(a). 675

CONSTITUTION OF NIGERIA (1999), § 5 cl. 1(a). 676

CONSTITUTION OF NIGERIA (1999), § 4 cl. 1. 677

CONSTITUTION OF NIGERIA (1999), §§ 5 cl. 2(a), 176, 178. 678

CONSTITUTION OF NIGERIA (1999), §§ 90–91.


141

tion.679 The specific processes for the establishment and functioning of the councils is deter-

mined by legislation on a state-by-state basis.680


The constitution assigns substantial powers to the national government. The National Assem-

bly has exclusive power to make laws on a comprehensive list of issues, including legal pro-

ceedings between the national and subnational levels, between states, and between the na-

tional government and any individual; the military; public debt; taxation of incomes, profits, and

capital gains; trade and commerce; and water from inter-state sources.681

The comparatively brief list of shared competencies

between the national and subnational levels in-

cludes providing for public safety and public order;

making grants or loans; tax collection; regulating

local government council elections; electricity; and

post-secondary education.682

Areas over which a state House of Assembly has

primary competence include industrial, commercial,

or agricultural development, and primary and sec-

ondary education.683 Yet if a state law is incon-

sistent with national law, national law prevails.684

Therefore, there are effectively no powers exclu-

sively reserved for states. Given that valid national

law prevails over state law and that the majority of

powers are assigned to the national government,

the political structure is highly centralized.

However, states have been able to maintain more

authority over Islamic law. The constitution pro-

vides space for the National Assembly and state

assemblies to expand the jurisdiction of the Sharia

court of appeal through law.685 This provision has in

679



CONSTITUTION OF NIGERIA (1999), sched. 2, part I. 682

CONSTITUTION OF NIGERIA (1999), § 11 cl. 1–2, sched. 2, part II §§ 1, 9, 11, 13, 14. 683

CONSTITUTION OF NIGERIA (1999), sched. 2 part II §§ 18, 30. 684


See the language in Chapter VII, Part I, Section E of the constitution, such as the wording of Article 262 (1) which

refers to “jurisdiction [of the Sharia Court of Appeal] as may be conferred upon it by an Act of the National Assem-


State Creation

The National Assembly can pass an act to

create a new state. The process requires four

sequential steps as laid out in the constitu-

tion.1 The National Assembly, the state legis-

lature, local governance councils, and the

people who live in the area where the new

state would exist all must support the crea-

tion of the new state during different steps

of the process. State creation provides a

means of accommodating interests of local

communities and enables citizens to have a

voice in the governance arrangements that

affect their lives.

Although numerous states were established

before the 1999 constitution—there were

three states at independence compared to

the 36 today—no new states have been cre-

ated since its adoption. Therefore, state cre-

ation is a potential means of Political Ac-

commodation that has not been used within

the current political structure.


142

effect given states the ability to legislate the reintroduction of Sharia into the judicial sector as

they see fit.686 This has led to a variety of justice systems that vary by state. (See Traditional and

Customary Arrangements – Judicial activities.)

Both the national and state governments have appealed to the Supreme Court to clarify as-

pects of the relationship between the national government and the states. Between 1999 and

2007, the court issued 15 decisions related to the division of powers under the current consti-

tution.687 Many, but not all, decisions recognized the supremacy of the national government,

consistent with the constitutional division of powers.688 To some observers, the Supreme Court

proved its ability to interpret the constitution in a balanced, impartial way through these deci-

sions.689


The national government has jurisdiction over the vast majority of natural resources in Nigeria,

which is significant because the majority of government revenue comes from natural re-

sources. The constitution stipulates that the national government controls all minerals, mineral

oils, and natural gas in the land, water, and exclusive economic zone of Nigeria.690 Additionally,

the Petroleum Act of 1969 vests ownership and control of all petroleum on land, water, and

continental shelf areas of Nigeria in the federal State.691 The national government established

the Nigerian National Petroleum Corporation (NNPC) in 1978, and the government participates

in joint ventures related to petroleum exploration, concessions, and production through the

NNPC.692

Analysis of the role of oil in the Nigerian economy in terms of dollar values further illustrates

the impact of the sector on the national budget. Nigeria’s GDP was approximately $515 billion

in 2013.693 The oil sector represents approximately 13 percent of GDP but approximately 70

percent of government revenue.694 In comparison, tax revenue was less than 5 percent of

bly.” Also see Rotimi T. Suberu, “Religion and Institutions: Federalism and the Management of Conflicts over Sharia in

Nigeria,” Journal of International Development 21, no. 4 (2009): 551. 686

Suberu, “Religion and Institutions,” 551; CONSTITUTION OF NIGERIA (1999), §§ 262, 277. 687

Rotimi T. Suberu, “The Supreme Court and Federalism in Nigeria,” The Journal of Modern African Studies 46, no. 3

(September 2008): 459–478. 688

Suberu, “Supreme Court and Federalism,” 478. 689

Suberu, “Supreme Court and Federalism,” 478. 690


Petroleum Act of 1969 § 1 cl. 1–2. 692

International Crisis Group, “Nigeria’s Faltering Federal Experiment,” Africa Report No. 119 (25 October 2006): 5. 693

World Bank, “World Bank Open Data Project: Nigeria, GDP,”

http://data.worldbank.org/indicator/NY.GDP.MKTP.CD?end=2015&locations=NG&start=1960&view=chart. 694

International Monetary Fund, “Nigeria: Selected Issues Paper,” IMF Country Report No. 15/85 (March 2015): 19–

20, https://www.imf.org/external/pubs/ft/scr/2015/cr1585.pdf.


143

GDP.695 While there has been significant growth in sectors besides oil, and reforms to increase

revenue from taxes have been announced, the majority of government revenue continues to

be derived from oil.

The constitution provides a framework for the allocation of financial resources. The National

Assembly has the legislative power to create provisions for division of public revenue between

the national government and the states; among the states; between the states and local gov-

ernment councils; and among local government councils in the states.696 Additionally, the con-

stitution includes provisions on how the National Assembly should allocate public funds. The

constitution states that the formula should take into account “allocation principles,” including

the size of population, equity of the states, internal revenue generation, land mass, and terrain,

as well as population density.697 As stated in the current constitution, at least 13 percent of

revenue is distributed to the natural resource-producing states.698

In practice, allocation of public funds has been contentious. The question of how the allocation

principles are applied to revenue distribution between states, particularly between states that

produce and do not produce oil, has been a source of intense debate. Many oil-producing

states argue that they should receive more than the 13 percent minimum requirement for

revenue generated from natural resources. Most of the other allocation principles laid out in

the constitution are informed by large amounts of data. The lack of consensus around the reli-

ability of population and socioeconomic data has created skepticism around the formulas de-

veloped by the national government to distribute revenue between the states.699

The question of how revenue is shared between the national government and the states has

been another source of intense debate. States have come to depend on the national govern-

ment for financial resources. In fact, in 2001, Nigeria’s states received an average of 90 percent

of their revenue as a transfer from the national government.700 Some analysts also argue that

states have been created even though they are not fiscally viable and depend entirely on the

national government for financial resources.701 States have appealed to the Supreme Court,

695

International Monetary Fund, “Nigeria: Selected Issues Paper,” 27. 696

CONSTITUTION OF NIGERIA (1999), sched. 2, part II § 1. 697


CONSTITUTION OF NIGERIA (1999), § 162 cl. 2. Currently the percent allocated according to the principle of derivation

is 13 percent. 699

Rotimi T. Suberu, “The Nigerian federal system: performance, problems, and prospects,” Journal of Contemporary

African Studies 28, no. 4 (2010): 468. 700

World Bank, Nigeria State Finances Study (April 2003): 51,

http://documents.worldbank.org/curated/en/433941468776705944/Nigeria-States-finances-study. 701

Chibuike U. Uche and Ogbonnaya C. Uche, “Oil and the Politics of Revenue Allocation in Nigeria,” African Studies

Centre, ACS Working Paper 54/2004 (2004): 38.


144

among other strategies, in an attempt to increase allocation of revenue from the national gov-

ernment to the states, as well as to increase state control over allocated resources.702

Assessment

The federal structure in Nigeria is centralized and decision making power is concentrated in

the national government. States are granted few exclusive powers – a notable exception being

over Islamic and customary law – and state law is subordinate to national law. Additionally,

states depend on the national government for financial resources, which further limits their

autonomy.


Parallel consent mechanisms that require support across geographical areas are used to elect

the president and governors. National-level legislators from both houses are elected through

first-past-the-post. An informal zoning arrangement implemented by the People’s Democratic

Party from 1999 through 2010 balanced representation between candidates from the north and

the south.

a. System design

The president is elected by a majority system with a parallel consent mechanism, meaning the

winning candidate is the candidate who receives a majority of votes in the election plus no less

than 25 percent of votes cast in at least two-thirds of the states and FCT–Abuja. There can be a

runoff election between two candidates. The winner of the runoff must receive the majority of

the votes plus no less than 25 percent of votes cast in at least two-thirds of the states and the

capital territory. If a second runoff election is necessary, then the candidate who receives the

majority of votes wins.703

From 1999 to 2010, the People’s Democratic Party (PDP), the dominant party at the time, im-

plemented a ‘zoning arrangement’ for nominating presidential candidates. The PDP alternated

its presidential nominee between the north and the south every eight years (two terms), with

the vice presidential candidate from the other region.704 Since the PDP won each presidential

election from 1999 until 2011,705 this ensured informal power sharing between the north and

the south. However, President Umaru Yar’Adua (from the north) died in office in 2010 and Vice

702

Suberu, “Supreme Court and Federalism,” 460–461. 703

CONSTITUTION OF NIGERIA (1999), § 134. 704

Ayo Awopeju, Olufemi Adelusi, and Ajinde Oluwashakin, “Zoning Formula and the Party Politics in Nigerian De-

mocracy: a Crossroad for PDP in 2015 Presidential Election,” Research on Humanities and Social Sciences 2, no. 4

(2012): 14–15. 705

African Elections Database, “Elections in Nigeria,” http://africanelections.tripod.com/ng.html.

http://africanelections.tripod.com/ng.html


145

President Goodluck Jonathon (from the south) won the PDP nomination for 2011 elections af-

ter finishing out Yar’Adua’s term. According to the zoning arrangement, the PDP presidential

candidate in the 2011 election should have come from the north.

Zoning seemed to balance the interests of various regional and ethnic groups. However, the

zoning arrangement also was criticized as an informal agreement among elites whose primary

purpose was to ensure the PDP’s dominance, and was thus undemocratic.706 The PDP’s presi-

dential dominance, and the informal zoning arrangement, came to an end when Muhammadu

Buhari of the All Progressives Congress party won the presidential election in March 2015.

Members of both the House of Representatives (the lower house) and the Senate (the upper

house) are directly elected by plurality vote from single-member districts (also known as ‘first-

past-the-post’ or FPTP).707

At the state level, governors are also elected by a majority system with a parallel consent

mechanism, meaning the winning candidate is the candidate who receives a majority of votes

in the election plus no less than 25 percent of votes cast in all local government areas in the

state.708 If this criterion is not met by any one candidate, a runoff election takes place between

two candidates: the candidate with the overall highest majority of votes, and the candidate with

the majority in the highest number of local government areas. The winner of the runoff must

receive the majority of the votes plus no less than 25 percent of votes cast in at least two-

thirds of all local government areas in the state. If a second runoff election is necessary, then

the candidate who receives the majority of votes wins.709

Members of state Houses of Assembly are directly elected from single-member districts as

prescribed by legislation of the National Assembly.710


Political parties must be open to all Nigerian citizens regardless of “place of origin, circum-

stance of birth, sex, religion or ethnic grouping.”711 The constitution includes mechanisms to

ensure that political parties are populated by citizens from all parts of Nigeria. For example, the

symbol or logo of a political party cannot speak to one ethnic or religious group in particular.712

706

John Campbell and Asch Harwood, “Judging Nigeria’s Election Season: Can the New Government in Abuja Over-

come Nigeria’s Many Challenges?” Foreign Affairs (15 April 2011), https://www.foreignaffairs.com/articles/west-

africa/2011-04-15/judging-nigerias-election-season. 707

CONSTITUTION OF NIGERIA (1999), §§ 71, 77. 708




CONSTITUTION OF NIGERIA (1999), § 222 cl. b. 712

CONSTITUTION OF NIGERIA (1999), § 222 cl. e.


146

Additionally, the leadership of a political party has to “reflect the federal character of Nigeria,”713

and members of the executive committee must consist of people from at least two-thirds of

the states of Nigeria and FCT–Abuja.714

However, the balance of diversity in political parties works differently in practice than in theory.

Ethnicity was a strong base of support for political parties before independence. The regional

character of federalism at the time gave political parties an incentive to grow strong bases in

their respective regions, in effect creating ethnic group solidarity within regional political par-

ties. Despite the years of military rule, which instituted policies meant to move away from eth-

nic bases in political parties, political mobilization of ethnicity remains a reality in Nigerian party

politics.715


Beyond the requirements for representation in political parties, there are no further provisions

in Nigeria’s constitution or electoral legislation to promote the representation of minorities or

women.

Assessment

The system of election and selection implemented in Nigeria contributes to increased equity of

representation. Parallel consent mechanisms, such as those employed for presidential and

gubernatorial elections, support accommodation because a candidate must win support from

different constituencies throughout the country or the state in order to be elected into office.

At the national level, in some ways the desire for political accommodation resulted in the im-

plementation of the unofficial zoning arrangement within the PDP, characterized by alternating

representation for northern and southern constituencies. The zoning arrangement successful-

ly balanced interests of different constituencies, and citizens expressed a degree of support for

the arrangement since they elected presidents from the PDP between 1999 and 2015. Howev-

er, the fact that the zoning arrangement was a strategy adopted by political elites has been

criticized as undermining aspects of the democratic process.

713

CONSTITUTION OF NIGERIA (1999), § 223 cl. 1(b). 714

CONSTITUTION OF NIGERIA (1999), § 223 cl. 2(b). 715

L. Adele Jinadu, “Inter-party dialogue in Nigeria: Examining the past, present and future,” Lead paper at the inau-

gural Democratic Governance for Development Political Parties Dialogue Series (4 October 2011), Bolingo Hotel, Abuja,

Nigeria, 3–5.


147

3. EXECUTIVE BRANCH

The president is the head of State, the chief executive, and commander in chief. At the state level,

executive power is vested in a governor. The federal charter principle, enshrined in the constitu-

tion, mandates that the national executive select at least one individual from each state to serve

as a minister. The federal character applies to government agencies in general, and thus has

promoted diversity and inclusivity within the executive.


Executive power at the national level is vested in the president. The president is the head of

State, the chief executive, and commander in chief of the armed forces.716 The president’s term

lasts four years, with a term limit of two terms.717

Each presidential candidate nominates a candidate from the same political party to serve as

vice president if the presidential candidate is elected.718 The president has the authority to as-

sign to the vice president or any minister of the government responsibility for any government

business, including the administration of any department of government.719

The president can appoint ministers of the government, and the president must appoint at

least one minister from each state.720 A minister of the government, appointed by the presi-

dent, cannot simultaneously hold a position in the National Assembly or any subnational state-

level assembly.721

Executive power at the state level is vested in a governor.722 The governor’s term lasts four

years, with a term limit of two terms.723


Members of the National Assembly can remove the president or vice president from office for

gross misconduct if all of the following conditions are met: 1) at least one-third of the members

of the National Assembly present allegations of gross misconduct to the president of the Sen-

ate; 2) both houses vote by at least a two-thirds majority to establish a panel to investigate the

716


CONSTITUTION OF NIGERIA (1999), §§ 135 cl. 2, 137 cl. 1(b). 718



The principle of appointing a minister from each state stems from Article 14, cl. 3 of the constitution. See Inclu-

sivity subsection. 721


CONSTITUTION OF NIGERIA (1999), § 176 . 723

CONSTITUTION OF NIGERIA (1999), §§ 180 cl. 2, 182 cl. 1(b) .


148

allegations; 3) upon investigation, the panel finds the allegations proven; and 4) both houses

vote by at least a two-thirds majority to adopt the panel’s findings.724 Yet while it is possible for

the National Assembly to remove the president or vice president, the National Assembly has

not done so.725

c. Inclusivity

The constitution requires the government to ensure an equitable balance among diverse peo-

ples within its institutions and throughout the process of implementing policy. Article 14(3) of

the constitution, also known as the federal character principle, states:

The composition of the Government… shall be carried out in such a manner as to reflect the

federal character of Nigeria and the need to promote national unity, and also to command

national loyalty, thereby ensuring that there shall be

no predominance of persons from a few state[s] or

from a few ethnic or other sectional groups in that

Government or in any of its agencies.726

This clause applies to state and local government

councils as well, whose conduct should “…recognize

the diversity of the people…and the need to pro-

mote a sense of belonging and loyalty among all the

people of the Federation.”727 The constitution also

requires that all ranks of the armed forces “reflect

the federal character of Nigeria.”728 The National As-

sembly is responsible for establishing a body to en-

sure that the composition of the armed forces re-

flects the federal character of Nigeria.729

The constitution also establishes a Federal Character Commission (FCC) to oversee implemen-

tation of the federal character principle across national and subnational public service agen-

cies, the armed forces, and the police.730 The constitution grants the commission the power to

prosecute those in charge of government bodies who fail to comply with the federal character

724


Mamman Lawan, “Abuse of powers of impeachment in Nigeria,” The Journal of Modern African Studies 48, no. 2

(June 2010): 312. 726




CONSTITUTION OF NIGERIA (1999), § 219 cl. b. 730

CONSTITUTION OF NIGERIA (1999), sched. 3, part I C – Federal Character Commission, § 8 cl. 1(a).


Equality of Representation among

States

The president of Nigeria, when appointing

his ministers of government, must select at

least one person from each state. This re-

quirement stems from the ethos articulated

in Article 14(3) in the constitution: “There

shall be no predominance of persons from

a few States… in any of its [the govern-

ment’s] agencies.” By mandating represen-

tation of the different subnational entities,

the constitution opens up the potential for

political accommodation across geograph-

ical areas in Nigeria.


149

principle or formula prescribed by the commission.731 Within the context of the executive, the

goal of balancing staff diversity is that no one group should dominate the branch.

However, the requirement that the federal character be reflected in the executive and other

government institutions opens the question of how to define where an individual is from if

government institutions are to include representatives from all states.732 While the FCC is for-

mally empowered to develop this definition,733 the federal character requirement politicizes

geographical origin. In practice, the system employed by the FCC places a heavy emphasis on

geographical quotas rather than qualified candidates.734

Assessment

Although it features a powerful president, the Nigerian executive is relatively representative

and inclusive. Constitutional provisions ensure representation of all states in the federation at

the ministerial level, and the federal character principle promotes diversity and inclusivity with-

in the executive. The establishment of the FCC to ensure implementation of the principle en-

hances the prospects for accommodating diverse interests in practice.


Nigeria’s National Assembly is a bicameral legislature composed of the Senate (upper house) and

the House of Representatives (lower house). While relatively representative of the population, the

National Assembly has struggled to pass legislation and is hampered by the low level of capacity

of its members, who tend to be inexperienced.


Legislative power is vested in the National Assembly, a bicameral legislature that consists of the

Senate (upper house) and the House of Representatives (lower house).735 The Senate consists

of three members from each state and one member from the FCT–Abuja, for a total of 109

senators.736 The House of Representatives consists of 360 members. A legislative term lasts

four years.737

731

CONSTITUTION OF NIGERIA (1999), sched. 3, part I C – Federal Character Commission, § 8 cl. 1(c). 732

International Crisis Group, “Nigeria’s Faltering Federal Experiment,” 12–14. 733

CONSTITUTION OF NIGERIA (1999), sched. 3, part I C – Federal Character Commission, § 8 cl. 1(a). 734

Abdul Raufu Mustapha, “Institutionalising ethnic representation: How effective is the Federal Character Commis-

sion in Nigeria?” Center for Research on Inequality, Human Security and Ethnicity, CRISE Working Paper No. 43 (June

2007): 11. 735

CONSTITUTION OF NIGERIA (1999), §§ 4 cl. 1, 47. 736


CONSTITUTION OF NIGERIA (1999), § 64 cl. 1.


150

In practice, Nigeria’s legislature is a relatively weak institution. It has struggled to pass legisla-

tion, taking years to pass bills,738 and to date it has not fulfilled its government oversight re-

sponsibilities effectively.739 The legislature is hampered by the low level of capacity of its mem-

bers, who tend to be inexperienced.740

Each state has a unicameral House of Assembly charged with legislating at the state level.741


Either house can originate a bill. Once both houses pass a bill, the bill is sent to the president.

Both the Senate and the House of Representatives must pass a bill, and the president must

assent to it, in order for the bill to become law. At the national level, a quorum (the minimum

number) of one-third of the members of a house is required to pass laws.742

Bills relating to public funds and taxation are granted a special process in the constitution. If

the bill passes in the originating house but does not pass in the other house within two

months of the beginning of the fiscal year, then a joint finance committee meets within 14 days

after that point to resolve the differences between the two houses.743 Should this joint finance

committee not reach a solution, a joint sitting of the National Assembly should convene to hear

the bill. Allocation of revenue is a critical, and contentious, function of the National Assembly.

(See Political Structure—Resource distribution and control.)


Presidential assent is required for bills to become law; however, a bill can still become law in

cases where the president has withheld consent if the bill is passed by a two-thirds vote in

both houses.

Assessment

The National Assembly is a representative institution in the sense that it draws its members

from across the states in the federation. However, the legislature suffers from low capacity,

and its members struggle to carry out their roles and responsibilities as representatives.

738

Edet J. Tom and Amadu J. Attai, “The Legislature and National Development: The Nigerian Experience,” Global

Journal of Arts Humanities and Social Sciences 2, no. 9 (November 2014): 70. 739

Joseph ‘Yinka Fashagba, “Legislative Oversight under the Nigerian Presidential System,” The Journal of Legislative

Studies 15, no. 4 (2009). 740

Tom and Attai “Legislature and National Development,” 70. 741



CONSTITUTION OF NIGERIA (1999), § 59.


151


There are a number of public participation mechanisms within the Nigerian political system. One

unusual mechanism is that citizens may recall a member of the National Assembly or the House

of Assembly through a process of petition and referendum. Whether public participation mecha-

nisms support or undermine political accommodation in Nigeria depends on how they are im-

plemented.


The Freedom of Information Act (2011) grants the right to access or request public information

and records, including those held by the executive and its ministries.744 It also requires public

institutions to keep records of its activities, operations, and ensure the information is “widely

disseminated and made readily available to members of the public through various means, in-

cluding print, electronic and online sources, and at [their] offices.”745 The act also explicitly

grants the right to institute court proceedings to compel a public institution to comply with the

act.746 Certain records pertaining to international affairs, defense, and law enforcement pro-

ceedings are exempt.747

The Public Complaints Commission Act (2004) establishes a commission tasked with investigat-

ing complaints submitted by the public regarding poor administration in federal, state, or local

government authority.748 The Public Complaints Commission’s authority does not extend to

investigating national- or state-level legislative bodies.749

b. Referendums

The public can recall a member of either house of the National Assembly and any House of As-

sembly through a process of petition and referendum. There does not need to be a legal justi-

fication behind the reason for submitting a recall of an elected official. Rather, it is the constit-

uency’s ‘loss of confidence’ in the elected official that triggers a recall.750

Two criteria must be met in order to recall an official: 1) more than half of the registered voters

in that member’s constituency must sign a petition expressing a loss of confidence in the

744

Freedom of Information Act of 2011 §§ 1, 2 cl. 7 (Nigeria). 745

Freedom of Information Act of 2011 § 2 (Nigeria). 746

Freedom of Information Act of 2011 § 2 cl. 6 (Nigeria). 747

Freedom of Information Act of 2011 §§ 11–12 (Nigeria). 748

Public Complaints Commission Act 37 of 2004 § 5 (Nigeria). 749

Kunle Aina, “The Relevance of Public Complaints Commission to Nigeria's Democratic Development,” International

Journal of Advanced Legal Studies and Governance 3, no. 3 (2012): 4–5. 750

Ajepe Taiwo Shehu, “Constituency Control of Legislators: Lessons from Nigeria,” African Journal of International

and Comparative Law 19, no. 1 (2011): 130.


152

member and present it to the chairperson of the Independent National Electoral Commission;

and 2) a simple majority of the registered voters in the member’s constituency must approve

the petition in a referendum.751 The Independent National Electoral Commission is required to

conduct the referendum within 90 days of the receipt of the petition.

The recall mechanism is a rare provision: only ten other countries or States have provisions for

recall of elected officials at a national level.752 The infrequent adoption of such a provision re-

flects its problematic nature. There is an inherent difficulty in striking a balance between a re-

call process that is easy enough to make citizens feel capable of using it and a recall process

that is too easy for citizens to execute, thus creating conditions for improper use.753 While the

recall mechanism has not been used widely in Nigeria, the Supreme Court has ruled that the

impeachment of two different governors was unconstitutional.754 The unconstitutional recall of

the governors highlights the potential for abuse of the recall mechanism.

Assessment

There are a number of mechanisms through which citizens can engage in the political process

and influence governance. Among these mechanisms, the ability to recall elected officials –

even at the national level – is unusual. The provisions that enable citizens to recall an elected

official can help to ensure that the representative is accountable to his or her constituency. Yet

the recall provision also risks being used by elites to exert influence over a legislator.


The way in which judicial activities and territorial autonomy are intertwined enhances political

accommodation in Nigeria. Specifically, the constitution gives each state the ability to establish

Islamic law. The result has been the creation of a wide spectrum of judicial systems, from Islamic

law to secular law, on a state-by-state basis that accommodate the diverse interests of local con-

stituencies.


The constitution stipulates that the person who presides over a local government council shall

pay regard to the traditional association of the community.755 This one mention of “traditional

association of the community” is the only reference to traditional arrangements in the constitu-

751

CONSTITUTION OF NIGERIA (1999), §§ 69, 110. 752

International Institute for Democracy and Electoral Assistance, “When citizens can recall elected officials,” in Direct

Democracy: The International IDEA Handbook (2008), 115. 753

International Institute for Democracy and Electoral Assistance, “When citizens can recall,” 123. 754

Lawan, “Abuse of powers of impeachment,” 322. 755

CONSTITUTION OF NIGERIA (1999), § 7 cl. 2(b)(iii).


153

tion. The constitution upholds local government’s authority to maintain control over traditional

associations and does not go into detail on how traditional associations should be recognized

by local government leadership.756

Therefore, the constitution does not grant traditional leaders a formal role in the State struc-

ture. But despite exclusion from formal State institutions, chiefs continue to play important

roles in Nigerian society, including as informal intermediaries between local communities and

institutions of the State.757 Since in many areas chieftaincies perform many functions at the lo-

cal level, some argue that traditional authorities should also fall under the authority of the con-

stitution.758 The difference between the official and unofficial role of chiefs within State-level

political structures highlights the significant gap between how the constitution defines institu-

tions and how institutions function in practice.

b. Judicial activities

The judicial system in Nigeria is a product of the religious diversity in a country with roughly

equal Christian and Muslim populations and a minority of the population that practices tradi-

tional religions. The geographically varied and blended judicial system reflects the historical

legacy of the Islamic caliphate in the northern region of Nigeria and the British colonial influ-

ence of English common law. Judicial activities thus are intertwined with territorial autonomy.

States’ ability to reintroduce Sharia into the judicial sector has resulted in a legal system that is

complex and incorporates combinations of secular law, Islamic law, and customary law in dif-

ferent areas of the country. Zamfara was the first state to reinstate elements of Sharia in 1999,

and 11 of 36 states followed. Each of these states has instituted Sharia in its own way, with

some states abolishing local native area courts and other states building on the infrastructure

of area courts.759 No southern state has chosen to adopt Sharia (Nigeria’s southern states are

majority non-Muslim), and Muslim populations within these states use customary courts for

the application of Islamic law in personal cases.760

The constitution establishes the legal foundation for a customary court of appeal and a Sharia

court of appeal in FCT–Abuja.761 The jurisdiction of the Sharia court of appeal only applies to

756

CONSTITUTION OF NIGERIA (1999), § 7 cl. 2(b)(iii); Charles Mwalimu, Seeking Viable Grassroots Representation Mecha-

nisms in African Constitutions: Integration of Indigenous and Modern Systems of Government in Sub-Saharan Africa, (New

York: Peter Lang Publishing, 2009): 119. 757

Olufemi Vaughan, Nigerian Chiefs: Traditional Power in Modern Politics, 1890s-1990s, (Rochester: University of

Rochester Press, 2000): 6; Mwalimu, Seeking Viable Grassroots Representation, 117. 758

Mwalimu, Seeking Viable Grassroots Representation, 405–406. 759

Suberu, “Religion and Institutions,” 553–554. 760

Abdulmumini Adebayo Oba, “The Sharia Court of Appeal in Northern Nigeria: The Continuing Crisis of Jurisdic-

tion,” The American Journal of Comparative Law 52, no. 4 (Autumn 2004). 761

CONSTITUTION OF NIGERIA (1999), § 260.


154

Islamic law matters and cases where non-Muslims have consented to the use of Islamic law.762

The Sharia court has jurisdiction over Islamic personal law including marriage, inheritance, and

guardianship.763 The kadis (judges of Islamic law) are appointed by the president upon recom-

mendation by the National Judicial Council.764

Assessment

Recognition of traditional leaders in the constitution, albeit limited, combined with the ability of

traditional leaders to be informally incorporated into state institutions, has increased equity of

representation and decision making in Nigeria. The degree to which the incorporation of tradi-

tional leadership enhances inclusion is limited by the fact that the majority of traditional lead-

ers in Nigeria are men.

The flexibility states have to determine what roles Islamic and customary laws play in their judi-

cial systems has led to a wide spectrum of judicial systems according to states’ demographics,

increasing representation of the diversity of faith traditions within Nigeria.

Conclusion

Nigeria’s large, diverse population presents significant challenges for political accommodation.

The political system features a number of mechanisms to foster accommodation, including a

flexible political structure that allows for the creation of new states, the federal character prin-

ciple that requires that government institutions reflect the country’s diversity, an electoral sys-

tem for the president and governors that tries to ensure buy-in across geographical areas, and

state authority over whether to establish secular, Islamic, customary law, or a hybrid system.

These and other governance mechanisms have enabled the country to meet the demands of

its diverse, in some ways deeply divided, society.

Yet the structural challenges to political accommodation within Nigeria’s political system should

not be overlooked. The centralization of powers and control of resources at the national level

is contentious. In particular, natural resource management and the distribution of revenue

from oil continue to drive conflict, particularly in the south. Additionally, political solutions to

episodes of ethnoreligious and ethnoregional violence and widespread corruption within gov-

ernance remain elusive.765 Alternative or enhanced Political Accommodation mechanisms may

be necessary to meet these challenges.

762

Oba, “The Sharia Court of Appeal,” 884. 763

CONSTITUTION OF NIGERIA (1999),§ 262. 764

CONSTITUTION OF NIGERIA (1999), § 261 cl. 1–2. 765

See, for example, Osaghae and Suberu, “A History of Identities.”


155

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hart.

HOW GOVERNANCE FUNCTIONS | SOUTH AFRICA

158

SOUTH AFRICA

Executive Summary

This case study focuses on South Africa’s governance arrangements analyzed through the lens

of Political Accommodation. Political Accommodation considers how governance options can








South Africa’s 1996 constitution was drafted through an inclusive participatory process follow-

ing decades of conflict. It lays out a system that balances inclusion and accommodation while

acknowledging the realities of a diverse and deeply divided country emerging from a costly civil

war. As a result, the constitution includes robust language protecting individual rights and rec-

ognizing South Africa’s many communities while also enabling a relatively centralized federal

structure that relies on institutions to implement politically accommodating policies.

South Africa’s constitution, and subsequent political system, is often used as a best-practice

example and has a number of accommodating features. Political parties have established vol-

untary political party quotas to increase representation of marginalized groups, which has led

to high levels of women’s representation at the national, provincial, and local levels. South Afri-

ca has established some of the most well-developed mechanisms for public engagement with

government in the world, including a program called “Taking Parliament to the People.” It fea-

tures an extensive traditional leadership network that parallels the formal government struc-

ture. However, South Africa has been criticized for its centralized political structure and for the

fact that implementation of certain measures largely relies on the good faith of political parties

and, more specifically, the ruling African National Congress (ANC) party.

Table 9—Accommodating and Less Accommodating Aspects in South Africa


SOUTH

AFRICA

Political party quotas for women

Representative legislature


Integration of traditional leaders into legislative

Independent court system




Implementation relies on good faith of political

parties


159

Background

As of 2016, South Africa’s population was 55.6 million people. The 1996 Constitution of the Re-

public of South Africa was adopted following decades of conflict between the white-minority

government and its apartheid policies and South Africa’s black and colored communities.766

Following an escalation of violence between government and anti-apartheid forces in the

1980s and growing pressure from international and domestic constituencies, a political dia-

logue process began in 1990, led by both the ruling National Party and the ANC and their re-

spective leaders, F.W. de Klerk and Nelson Mandela.767 South Africa’s peace process was unu-

sually representative and inclusive. Although the two leading parties to the conflict shaped the

agenda, a broad range of political actors and interested parties contributed to the dialogue,

and the process involved a high level of public participation. After several years of multiparty

talks and agreement on an interim constitution, the first nonracial, democratic elections were

held in April 1994. A new constitution followed two years later.768 This case study focuses on

the provisions of the 1996 constitution and the legal framework that has been implemented in

the intervening 20 years.








tions that can potentially accommodate competing political interests.

The framework consists of six focal areas or ‘Strands’, each representing complementary paths

that can contribute to political accommodation. The governance Strands are:



766

South Africa classifies people by four distinct population groups: black African, colored, Indian/Asian, and white.

In 2016, 80.7% of the population was black African, 8.7% colored, 2.5% Indian/Asian, and 8.1% white. Statistics South

Africa, “Community Survey 2016: Statistical Release P0301” (Pretoria: 1 July 2016), http://cs2016.statssa.gov.za/. 767

Eldred de Klerk, “South Africa’s Negotiated Transition: Context, Analysis, and Evaluation,” in Owning the Process:

Public Participation in Peacemaking, ed. Catherine Barnes (London: Conciliation Resources, 2002): 18. 768

de Klerk, “South Africa’s Negotiated Transition,” 18. 769




160

3. Executive branch






the Strands.


South Africa has used specific mechanisms that promote accommodation of different inter-

ests.



South Africa’s political structure resembles a federal state. The constitution recognizes four levels

of governance, and provinces are granted a number of shared competencies with the national

government and are able to pass their own constitutions. However, due in part to a lack of ca-

pacity at lower levels of government and weak revenue raising at the province level, South Africa

operates more like a centralized state than a federal one. The national government maintains

significant control over provincial and municipal policy decisions.

a. Structure

While its constitution does not mention federalism, South Africa resembles a federal State. The

constitution explicitly recognizes four levels of government—national, provincial, district munic-

ipality, and local municipality.770 Provinces are granted a number of shared competencies with

the national government and are able to pass their own constitutions.771 However, in practice,

some have argued that South Africa operates more like a centralized State and that the na-

tional government maintains significant control over provincial and municipal policy decisions,

both in law and in practice.772 Thus, despite many elements of a federal State, South Africa’s

political structure is difficult to categorize.773

770

There is also a parallel structure of traditional communities that will be described in the Traditional and Custom-

ary Structures section. Note that for the purposes of this report, the term ‘local governance’ refers to both district

municipalities and local municipalities. 771

S. AFR. CONST., 1996 § 104 cl. 1. 772

Louis A. Picard and Thomas Mogale, Comparative Assessment of Decentralization in Africa: South Africa Desk Study

(Washington: United States Agency for International Development, 2010): 1; Christina Murray, “Republic of South


161

At the national level, South Africa is governed by a president and a bicameral parliament. The

parliament consists of the National Assembly, which represents the public at large, and the Na-

tional Council of Provinces (NCOP), which represents the interests of the provinces. Each prov-

ince has a unicameral parliament led by a premier, and municipalities are managed by a mayor

and a municipal council. An organized network of traditional leaders parallels the formal gov-

ernment structure from the local to the national level and advises government bodies on mat-

ters pertaining to customary law, customs, traditional leadership, and traditional communities

(see

Figure 11). Disputes between national and/or subnational institutions can only be resolved by

the Constitutional Court.774

Figure 11—South Africa’s Political Structure

Africa,” in A Global Dialogue on Federalism, Vol. 3: Legislative, Executive, and Judicial Governance in Federal Countries ed.

Katy Le Roy and Cheryl Saunders (Montreal: McGill Queen University Press, 2006): 1. 773

Reluctance to use the term ‘federalism’ in the constitution is due in large part to the fact the apartheid govern-

ment used federalism, particularly its use of Bantustans or separate territories for black inhabitants, to promote

racial segregation. More strongly federal arrangements agreed in the Multi-Party Negotiating Process (1992–1993)

were kept out of the final constitution due to these concerns. Murray, “Republic of South Africa,” 2 and Picard and

Mogale, Comparative Assessment of Decentralization, v. 774

S. AFR. CONST., 1996 § 167 cl. 4.


162


Most competencies in South Africa are shared between the national and subnational govern-

ments. Provinces have few exclusive areas of competency, but there are substantial shared

competencies that include agriculture, education, health services, housing, public transport,

urban and rural development, and welfare services.775 Functional areas exclusive to provincial

government include provincial planning, cultural matters, recreation and sport, and roads and

traffic.776 The national government enjoys exclusive authority over any matter not listed as ei-

ther a shared competency or as exclusive to provinces.777 Disputes over these competencies

must be adjudicated by the Constitutional Court.778

If the national government and a provincial government enact a conflicting law under a shared

functional area, provincial law prevails.779 However, this is qualified by the fact that national law

prevails if any of a number of conditions is met, including if the legislation is necessary for na-

tional security, economic unity, protection of the common market, or protection of the envi-

ronment, or if it deals with a matter that cannot be regulated effectively by individual provincial

legislation.780 The constitution also states that the national parliament may pass legislation out-

side of its functional area if such action is required by national security, economic unity, essen-

tial national standards, the rendering of services, or the prevention of an action that is prejudi-

cial to the interests of another province or the country as a whole.781 Conflicts between nation-

al and subnational laws have been tested, with national laws being found both to prevail over

provincial laws and to be unconstitutional.782

In practice, the national government exercises many of the shared powers, meaning that policy

making is relatively centralized, and the primary role of provincial and local governments is de-

livering nationally determined policies and programs.783

National dominance in decision making is also made possible by a lack of capacity at the sub-

national levels. Most subnational institutions are still developing a functional civil service, and

there is a resulting gap between responsibilities mandated by the constitution and the imple-

mentation of those responsibilities.784 A 2013 study on local governance found that municipal

775

S. AFR. CONST., 1996 sched. 4. 776

S. AFR. CONST., 1996 sched. 5. 777

S. AFR. CONST., 1996 § 44 cl. 1. 778

S. AFR. CONST., 1996 § 167 cl. 4. 779

S. AFR. CONST., 1996 § 146 cl. 4. 780

S. AFR. CONST., 1996 § 146 cl. 2. Section 146 includes an additional five conditions. If any one of these applies, na-

tional law prevails over the conflicting provincial law. 781

S. AFR. CONST., 1996 § 44 cl. 2. 782

Mashavha v. President of the Republic of South Africa and Others 2004 (6) BCLR 1243 (CC) (S. Afr.) and Ex Parte Presi-

dent of the Republic of South Africa: In re Constitutionality of the Liquor Bill 1999 (15) BCLR 1 (CC) (S. Afr.). 783

Murray, “Republic of South Africa,” 1. Picard and Mogale, Comparative Assessment of Decentralization, 8. 784

Murray, “Republic of South Africa,” 2.


163

governments do not exercise the full independent authority granted to them by the constitu-

tion.785 Local governments have struggled against capacity shortages (insufficient managerial,

financial, technical, and project management skills) and socioeconomic barriers (high poverty

and unemployment rates), resulting in poor service delivery.786


The national government has exclusive competency over mining, marine resources, fresh wa-

ter resources, national parks, and botanical gardens. The constitution grants shared compe-

tencies to national and provincial governments over administration of indigenous forests, the

environment, nature conservation, regional planning and development, and urban and rural

development (among others).787

The constitution calls for equitable division of revenue between the national, provincial, and

local levels of government. Provincial and local governments are entitled to a share of national

funds in order to provide basic services and perform the competencies assigned.788

Provinces are mostly funded through transfers from the national government. From 2011 to

2015, national transfers accounted for more than 90 percent of provincial revenue, and for

seven of nine provinces they constituted 96 percent or more of provincial revenue.789 The bulk

of funds are distributed through a Provincial Equitable Share (PES) formula that takes into ac-

count the needs of each province.790

Although most funding is provided through the PES and conditional grants, provincial govern-

ments have the option to raise their own funds. The national government has authority over

income tax, value-added tax, general sales tax, and rates on property and customs duties. Pro-

vincial governments are permitted to impose taxes that do not already fall under the national

785

In fact, the study found that of the 37 municipalities analyzed, only two were close to actually performing all of

the 38 functions required in the constitution. Thomas A. Koelble and Andrew Siddle, “Why Decentralization in South

Africa Has Failed,” Governance: An International Journal of Policy, Administration, and Institutions 26, no. 3 (July 2013):

344–345. 786

Koelble and Siddle, “Why Decentralization in South Africa,” 344–345. Financial and Fiscal Commission, Submission

on the Division of Revenue 2014/15 (Johannesburg: Financial and Fiscal Commission, 2013): 64. 787

S. AFR. CONST., 1996 sched. 4 part A. 788

S. AFR. CONST., 1996 §§ 214 cl. 1, 227 cl. 1. 789

The following is an average from fiscal years 2011/2012–2014/2015 of the percentage of provincial revenue na-

tional transfers comprise for each province: Eastern Cape: 98%; Free State: 96%; Gauteng: 95%; KwaZulu-Natal:

97%; Limpopo: 97%; Mpumalanga: 98%; Northern Cape: 98%; North West: 96%; Western Cape: 93%. Provincial

Treasury of KwaZulu-Natal, “Estimates of Provincial Revenue and Expenditure 2015/16,” 25,

http://www.treasury.gov.za/documents/provincial%20budget/2015/4.%20Estimates%20of%20Prov%20Rev%20and%

20Exp/Default.aspx. 790

Tania Ajam et al., eds., Technical Report: Annual Submission on the Division of Revenue 2010/11 (Johannesburg: Fi-

nancial and Fiscal Commission, 2009): 1; Division of Revenue Bill 2011/2012, Bill 4–2011, Explanatory Memorandum to

the Division of Revenue part 4 (S. Afr.). Need is based on six components: education (48%), health (27%), population

(16%), institutional cost (5%), poverty (3%), and economic output (1%).


164

government’s jurisdiction, and may employ flat-rate surcharges on taxes imposed by the na-

tional government (except for surcharges on corporate income taxes, value-added taxes, rates

on property, or customs duties).791

In a 2009 assessment of the PES formula, the Financial and Fiscal Commission (FCC) found that

because provincial governments receive most of their funding through intergovernmental

transfers, the resource distribution system fails to encourage revenue collection at the subna-

tional level, exacerbating dependence on the national government for funds.792 Weak subna-

tional revenue collection is also limited by law and historic precedent, and provinces controlled

by the dominant ANC party typically rely on distributions from the national government.793 Lim-

ited tax bases, public resistance to paying taxes, and weak administrative skills inhibit some

provincial governments’ abilities to raise funds.794 An exception is Western Cape, traditionally

controlled by the opposition party the Democratic Alliance, which has a more diverse revenue

stream.795

Municipalities are allowed to impose taxes on property and surcharges on fees for services

provided, as well as other taxes, levies, and duties, as authorized by national legislation.796

Most municipalities are primarily funded through national and provincial transfers, although

some large cities, such as Johannesburg and Cape Town, are mostly self-financing. National

grants account for only 15 percent of Johannesburg’s revenue and 8.6 percent of Cape Town’s

revenue, and for both cities, the majority of revenue comes from service charges and property

taxes.797

Protests over poor service delivery have become common in low-income areas.798 Country-

wide strikes and protests linked to poor service delivery and corruption took place prior to the

2011 local government elections.799 In a 2009 report, the FCC suggested that the national gov-

ernment has simply failed to address the root causes, citing the need to reassess the overall

791

S. AFR. CONST., 1996 § 228 cl. 1. 792

Ajam et al., Technical Report, 8; Financial and Fiscal Commission, Submission on Division of Revenue 2014/15, 60. 793

Picard and Mogale, Comparative Assessment of Decentralization, 7. 794

Picard and Mogale, Comparative Assessment of Decentralization, 10, 13. This varies by location. In formerly white

areas, 95% tax collection is common, while property and service taxes are much lower in historically black areas and

virtually nonexistent in the former Bantustans. 795


S. AFR. CONST., 1996 § 229 cl. 1. 797

Robert Cameron, “Vertical Decentralization and Urban Service Delivery in South Africa: Does Politics Matter?”

WIDER Working Paper 2012/087 (Helsinki: UNU-WIDER, 2012): 14. It should be noted that Johannesburg is the capi-

tal of Gauteng, South Africa’s wealthiest province, and Cape Town does not have any populous black townships with

high degrees of poverty within its borders. 798

Idasa, Elections and the Management of Diversity in Africa: National Country Report for South Africa (Pretoria: Idasa,

2012): 24. 799

Idasa, Elections and the Management of Diversity, 104.


165

infrastructure of local governments.800 Reports also indicate that significant amounts of the

money that is distributed disappear due to ghost workers, corruption, and administrative

waste.801

Assessment

South Africa represents an interesting mix of centralized and decentralized governance struc-

tures. The structural arrangements adopted in the constitution could have created a relatively

decentralized State, but in practice, given the lack of capacity at lower levels of government and

weak revenue raising at the province level, the State has operated in a rather centralized man-

ner. This highlights the importance of taking into account the details of the context in designing

political structures and of incorporating mechanisms for political accommodation across the

other Strands. For example, since many policies are set at the national level, ensuring that the

national-level executive and legislature are broadly representative and respond to diverse po-

litical interests and that traditional leaders and the public at large can feed into national-level

decision making is important for taking account of diverse interests.


Elections for the National Assembly, provincial legislatures, and local councils follow a system of

closed party list proportional representation, which has led to relatively representative bodies.

There have been few complaints about the transparency and participatory nature of elections;

however, the closed list system has come under some criticism that it fosters elected officials’

party loyalty instead of accountability to constituents. While electoral law does not require provi-

sions for representation of marginalized groups, political parties have established voluntary

quotas that have led to high levels of women’s representation at the national, provincial, and

local levels.

a. System design

The president and premiers are elected from among the members of National Assembly and

provincial legislatures, respectively, by a simple majority vote.802

Elections for the National Assembly (the lower house of parliament), provincial legislatures, and

local councils follow a system of closed party list proportional representation (PR).803 Addition-

800

Tania Ajam et al., Technical Report, xv-xvi. 801


S. AFR. CONST., 1996 §§ 128, 86 cl. 1, sched. 3A. 803

See Electoral Act 73 of 1998 sched. 1A, §§2, 3 (S. Afr.) for the National Assembly; Electoral Law 73 of 1998 sched. 1A

§§ 10–14 (S. Afr.) for the Provincial Legislatures; and S. AFR. CONST., 1996 § 157 cl. 2 for Municipal Councils. Party-list

PR is a system in which each party presents a list of candidates for a multimember district. The voters vote for a


166

ally, for the National Assembly, half of the 400 seats are allocated by provincial lists (with a fixed

number of seats reserved for each province), and the other half are allocated by national

lists.804

The 90 members of the NCOP (the upper house) are selected by the provincial legislatures.

Each province nominates ten delegates: four special delegates and six permanent delegates.805

One of the four special delegate seats is reserved for the premier, the provincial-level execu-

tive. Membership of the provincial delegations is proportional to the number of seats each par-

ty holds in the provincial legislature, thereby ensuring the participation of minority parties.806

Municipalities of a certain size may establish an executive committee.807 The municipal council

elects committee members from among its members.808 The mayor is elected by the municipal

council from among the executive committee members.809

There have been few complaints about the transparency and participatory nature of elections

in South Africa. National and provincial elections consistently feature genuine multi-party com-

petition and high voter turnout.810

The outcomes of elections have largely favored the ANC since 1996. In the 2014 elections, the

ANC won 249 of the 400 National Assembly seats and also won majorities, or in several cases

super-majorities, in eight of nine provincial legislatures, which translates to a controlling majori-

ty in both chambers of parliament.811

The PR electoral system has received both praise and criticism regarding its capacity to balance

diversity and accountability. PR can foster diversity and the election of smaller parties, but leav-

ing candidate choice and order to the party (closed list) also creates incentives for elected offi-

cials to remain accountable to the party instead of to their constituencies. Party officials decide

party, and the winning candidates are taken from the top of the lists to fill seats according to each party’s overall

share of the vote. In a ‘closed-list’ system, the party determines candidates’ positions on the lists. 804

Electoral Act 73 of 1998 sched. 1A cl. 2 (S. Afr.). 805

The special delegates are rotating members of the provincial legislature. The permanent delegates cannot be

members of the provincial legislature—they are considered full-time members of the national parliament. S. AFR.

CONST., 1996 § 61. 806

S. AFR. CONST., 1996 sched. 3 part B: “The number of delegates in a provincial delegation to the National Council of

Provinces to which a party is entitled, must be determined by multiplying the number of seats the party holds in the

provincial legislature by ten and dividing the result by the number of seats in the legislature plus one;” and S. AFR.

CONST., 1996 § 61 cl. 2–3. 807

Local Government Municipal Structures Act 117 of 1998 §42 (S. Afr.). 808

Local Government Municipal Structures Act 117 of 1998 §45 (S. Afr.). 809

Local Government Municipal Structures Act 117 of 1998 §48 cl. 1 (S. Afr.). 810

African Union Commission, African Union Election Observation Mission to the 7 May 2014 National and Provincial

Elections in the Republic of South Africa: Final Report (August 2014): 53; and Idasa, Elections and the Management of

Diversity, 53. 811

Electoral Commission of South Africa, “2014 National and Provincial Elections Results,”

http://www.elections.org.za/resultsnpe2014/.


167

the composition and order of party lists; constituents only cast their vote for the party in gen-

eral. This has fostered a tradition of party loyalty among elected officials in South Africa.812


The Electoral Commission manages elections at all levels of government.813 It is composed of

five members, including one judge, and its members are nominated by a National Assembly

committee and appointed by the president.814 The Commission’s responsibilities include en-

suring free and fair elections, maintaining voter rolls, registering political parties, promoting

voter education, and declaring election results.815 The Commission also determines voting dis-

tricts.

The Electoral Commission shares electoral management responsibilities with the Electoral

Court, which includes five members who are appointed by the president on the recommenda-

tion of the Judicial Service Commission.816 While the Electoral Commission is responsible for

overseeing general election activities, both the Commission and the Electoral Court play a role

in dispute resolution. Either entity may adjudicate a dispute over the final result of an election

and can mandate that votes from a particular voting station be excluded from the overall

count.817

c. Political parties

Political parties must formally register with the Electoral Commission to participate in elections.

To register, a political party must submit a deed of foundation (which includes signatures of at

least 100 registered voters) and a party constitution to the Commission.818 Registered political

parties cannot propagate or incite violence, hatred, or serious offense toward others based on

race, gender, sex, ethnicity, sexual orientation, age, disability, religion, culture, or language.819

Further, party membership or support cannot be based on the grounds of race or ethnicity.820

For a political party to participate in an election, it must submit a list of candidates to the Elec-

toral Commission according to the timetable set by the Commission.821 While candidates must

812

Pierre de Vos, “Key Institutions Affecting Democracy in South Africa,” in Testing Democracy: Which Way is South

Africa Going? eds. Neeta Misra-Dexter and Judith February (Cape Town: Idasa, 2010): 100; and Idasa, Elections and the

Management of Diversity, 48–49. 813

S. AFR. CONST., 1996 art. 190 (1)(a). 814

Electoral Commission Act 51 of 1996 §6 cl. 1 (S. Afr.). 815

Electoral Commission Act 51 of 1996 §5 cl. 1 (S. Afr.), Electoral Act 73 of 1998 §§57, 60, 64 (S. Afr.). 816


Electoral Act 73 of 1998 §56 (S. Afr.). 818


Electoral Commission Act 51 of 1996 §16 cl. 1(c) (S. Afr.). 820

Electoral Commission Act 51 of 1996 §16 cl. 1(c) (S. Afr.). 821

Electoral Act 73 of 1998 §27 (S. Afr.).


168

conform to the requirements of office set by the constitution, political parties craft the candi-

date list according to their own internal rules.

d. Special provisions

The electoral law in South Africa does not include any specific mechanisms to ensure repre-

sentation of historically underrepresented groups in the legislature or executive (such as rep-

resentation based on gender, ethnicity, or religion). The Local Government Municipal Struc-

tures Act (1998) suggests parties “seek to ensure that” 50 percent of candidates on the party

list at the municipal council level be women, and that women and men candidates alternate on

the list; however, this is not a binding requirement.822 While not all parties follow this sugges-

tion, as of 2015, 38 percent of local government positions were held by women.823

Despite the lack of legislative mechanisms, this issue has largely been taken on voluntarily by

the main political party. In 1994, the ANC adopted a 30 percent quota for women; every third

candidate on their national and provincial lists had to be a woman.824 And, in 2007, the ANC

amended its constitution to adopt a 50 percent quota for women.825 As a result of these volun-

tary quotas, post-apartheid South Africa has consistently featured 30 percent or more women

legislators at the national and provincial levels.826 South Africa ranks eighth in the world for

women’s representation in a lower or single house of parliament, with 42 percent representa-

tion in the National Assembly in 2015.827 As of July 2016, no other political parties have adopt-

ed voluntary quotas for women.828

In addition to gender, the ANC party leadership also considers the following in developing its

national and provincial party lists: geographical representation; representation of racial groups;

party continuity; representation from party affiliates (e.g., the Congress of South African Trade

822

Local Government Municipal Structures Act 117 of 1998 sched. 1 §11 cl. 3, sched. 2 §§5 cl. 3, 17 cl. 5 (S. Afr.). 823

Colleen Lowe Morna, Sifiso Dube, and Lucia Makamure, eds., SADC Gender Protocol 2015 Barometer (Johannes-

burg: Southern Africa Gender Protocol Alliance, 2015): 93. 824

Mavivi Myakayaka-Manzini, “Political Party Quotas in South Africa,” in The Implementation of Quotas: African Experi-

ences, ed. Julie Ballington (Stockholm: International IDEA, 2004): 59; Bookie Monua Kethusegite-Juru, “Quotas Sys-

tems in Africa: An Overview,” in The Implementation of Quotas: African Experiences, ed. Julie Ballington (Stockholm: In-

ternational IDEA, 2004): 22. 825

African National Congress, African National Congress Constitution (Johannesburg: African National Congress, 2007):

Rule 6. 826

Myakayaka-Manzini, “Political Party Quotas,” 59. As of 2015, women made up 42 percent of parliament. Morna, et

al., SADC Gender Protocol 2015, 87. 827

Inter-Parliamentary Union, “Women in national parliaments,” 1 December 2015, http://www.ipu.org/wmn-

e/classif.htm. 828

Janine Hicks and Colleen Lowe Morna, “Gender equality in elections cannot be left to the whims of political par-

ties,” Mail & Guardian (29 July 2016), https://mg.co.za/article/2016-07-29-00-gender-equality-in-elections-cannot-be-

left-to-the-whims-of-political-parties.


169

Unions and South African Communist Party); age range of candidates; people with disabilities;

and candidates with skills in finance and economic development.829

At least one-third of both traditional (local) councils and of the National House of Traditional

Leaders must be women,830 and most legislation governing provincial houses of traditional

leaders calls for women’s inclusion. (See Traditional and Customary Arrangements.) Processes for

becoming traditional leaders vary, and many positions are inherited, traditionally by male heirs.

However, in some areas norms are changing, and a notable 2008 Constitutional Court judg-

ment ruled that traditional authorities could amend customary law so that it allowed women to

inherit traditional leadership positions.831

Assessment

The system of election and selection in South Africa contributes to increased equity of repre-

sentation and decision making. The use of PR in South Africa has led to rather inclusive and

representative bodies, although the use of closed party lists also illustrates how closed lists can

promote party loyalty over accountability to constituents.

Since the president and premiers are elected from among their respective legislatures, the

election of the legislature plays an important role in ensuring that the executive represents a

broad range of interests. The public has little recourse should an executive fail to represent

and consider diverse political interests, except indirectly through legislative elections.

The use of voluntary political party quotas provides an alternative to legislated provisions for

inclusion for a diverse country transitioning out of conflict. One critique of constitutionally re-

served seats is that they can reinforce identity differences. Voluntary party quotas are more

flexible and can be adjusted as society adapts, although they also depend on parties’ willing-

ness to create, implement, and self-police their own policies for promoting diversity. Their suc-

cess in increasing women’s representation in South Africa is due to both women’s activism and

internal democratic practices within the ANC.

829

Idasa, Elections and the Management of Diversity, 56. 830

Traditional Leadership and Governance Framework Act 41 of 2003 §3 cl. 2(b) (S. Afr.); National House of Tradi-

tional Leaders Act 22 of 2009 §3 cl. 4 (S. Afr.). 831

Tinyiko Lwandhlamuni Philla Nwamitwa Shilubana and Others v. Sidwell Nwamitwa 2008 (9) BCLR 914 (CC) (S. Afr.).


170

3. EXECUTIVE BRANCH

The president is the head of State and commander in chief. Although given the title of ‘president’,

this office operates similarly to the role of a prime minister. There are a number of constitution-

ally mandated legislative checks on the executive; however, in practice, the president is a power-

ful executive with significant authority over the legislative process. Since no laws mandate inclu-

sion in the executive, it falls to the president to ensure broad representation and inclusion in the

cabinet.


The president is the head of State, head of the national executive, and commander in chief.832

The president is elected from among the members of the National Assembly, representing the

dominant party in parliament, and can serve no more than two terms in office.833

The president reviews and signs bills after they have been approved by parliament. The presi-

dent may refer legislation back to the National Assembly for reconsideration. If a bill is then

resubmitted to the president, the president must either sign the bill or refer it to the Constitu-

tional Court for a decision on its constitutionality.834

In addition to signing bills into law, the president (together with the appointed members of the

cabinet) initiates and implements legislation, develops national policy, and coordinates minis-

tries.835 The president appoints all members of the cabinet and assigns their powers and func-

tions. No more than two members may be selected from outside the National Assembly.836

At the provincial level, executive authority is vested in a premier.837 The premier is responsible

for signing provincial bills, appointing commissions of inquiry, summoning the legislature for

special sessions, and calling referendums in accordance with national legislation.838 The prem-

ier also appoints an executive council (consisting of five to ten members of the provincial legis-

lature).839 Together, the premier and executive council are responsible for initiating and im-

plementing provincial legislation, developing and implementing provincial policy, coordinating

832

S. AFR. CONST., 1996 §§ 83 cl. a, 201 cl. 1. 833

S. AFR. CONST., 1996 § 86 cl. 1, 88 cl. 2. The length of the president’s term depends on how long the legislature that

elects the president is in office, so since legislative terms last five years, practically a full term for president is also

five years, so long as the president is elected at the beginning of the legislature’s term. Heinz Klug, The Constitution of

South Africa: A Contextual Analysis (Portland, OR: Hart Publishing, 2010): 194. 834

S. AFR. CONST., 1996 § 84. 835

S. AFR. CONST., 1996 § 85. 836

S. AFR. CONST., 1996 § 91. 837

S. AFR. CONST., 1996 § 125 cl. 1. 838

S. AFR. CONST., 1996 § 127. 839

S. AFR. CONST., 1996 § 132.


171

the functions of provincial administration, and implementing national policy.840 The premier

may refer draft legislation back to the provincial legislature for reconsideration or to the Con-

stitutional Court for questions on its constitutionality.841


The executive authority of the president and the cabinet is checked by both the parliament

and the Constitutional Court. In addition to electing the president, the National Assembly can

remove the president from office with a two-thirds vote of its members.842 Grounds for remov-

al include serious misconduct or violation of the constitution or laws.843 With a majority vote,

the National Assembly may alternatively pass a vote of no confidence in the president, in which

case the president and members of the cabinet must resign.844 Both chambers of parliament

also have the power to summon any individual, including members of the executive, and re-

quire any person or institution to report to it.845 The cabinet is also ultimately accountable,

both collectively and individually, to the parliament.846 The National Assembly can dissolve the

cabinet with a majority vote of no confidence.847

The president’s powers vis-à-vis the legislative process are also limited by parliament. The pres-

ident may return a bill to parliament, but if the draft legislation is reconsidered and passed by

the appropriate chamber(s) of parliament, the president must sign the bill into law or refer it to

the Constitutional Court to determine its constitutionality.848 If the Constitutional Court deter-

mines that the legislation is constitutional, the president must sign the bill into law.849

Mechanisms for checking executive authority at the provincial level largely mirror those at the

national level. The provincial legislatures are responsible for maintaining oversight of the pro-

vincial executive and the implementation of legislation.850 Members of the executive council

are accountable, both collectively and individually, to their respective legislative bodies, and

they must provide the legislature with regular reports.851 A provincial legislature can remove a

premier from office either for cause or by a vote of no confidence.852

840

S. AFR. CONST., 1996 § 125 cl. 2. 841

S. AFR. CONST., 1996 § 121. 842

S. AFR. CONST., 1996 § 89 cl. 1. 843

S. AFR. CONST., 1996 § 89 cl. 1. 844

S. AFR. CONST., 1996 § 102 cl. 2. 845

S. AFR. CONST., 1996 §§ 55 cl. 2(b), 56, 66 cl. 2, 69. 846

S. AFR. CONST., 1996 § 92 cl. 2. 847

S. AFR. CONST., 1996 § 102 cl. 1. 848

S. AFR. CONST., 1996 § 79 cl. 1, 79 cl. 4. 849

S. AFR. CONST., 1996 § 79 cl. 5, 121 cl. 3. 850

S. AFR. CONST., 1996 § 114, 92 cl. 2, 133 cl. 2, 133 cl. 3. 851

S. AFR. CONST., 1996 § 92 cl. 2, 133 cl. 2–3. 852

S. AFR. CONST ., 1996 § 130 cl. 3.


172

In practice, legislative oversight mechanisms have had little effect. Due to the party-centric na-

ture of the PR system, members of parliament are largely accountable to their party; and due

to the selection/election process for the president and cabinet, most of the party leadership is

concentrated in the executive. These two factors create weak incentives for the legislature to

effectively check the executive.853 Further, because the executive wields control within the ANC

political party structure, this largely leaves the oversight function to a relatively weak and non-

unified opposition in the parliament.854As a result, the executive explicitly and implicitly holds

significant authority over the legislative process, in addition to the implementation of laws.

The independent court system, and specifically the strong Constitutional Court, does provide a

significant check on executive power.855 The Constitutional Court has the final decision in in-

terpreting the constitution, and the courts can declare both laws and executive conduct invalid

if they are not in line with the constitution.856 The Constitutional Court has ruled on executive

action various times, including on legislation promoted by the president creating a corruption-

fighting unit that the court found not to be sufficiently independent and mandated that new

legislation be written.857

The executive largely remains insulated from direct interaction with the public—both in terms

of direct elections and public participation.

c. Inclusivity

There are no laws mandating inclusivity in the executive. Despite this, as of 2015, women made

up 41 percent of the cabinet.858

Assessment

The president is a powerful executive with significant authority over legislative process. There

are no formal mechanisms for ensuring inclusivity within the executive; thus, it falls on the

president to ensure broad representation and inclusion in the cabinet. However, the legisla-

tures, which are broadly representative of diverse interests, choose the president and prem-

iers.

853

Pierre de Vos, “Key Institutions Affecting Democracy,” 100. 854


Murray, “Republic of South Africa,” 9–10. 856

S. AFR. CONST., 1996 §§ 167, 168, 169. 857

Pierre de Vos, “The court keeping a check on the South African state,” The Guardian (2 December 2011),

https://www.theguardian.com/commentisfree/libertycentral/2011/dec/02/south-africa-jacob-zuma-constitutional-

court. 858

Morna, SADC Gender Protocol 2015, 82.


173


The South African legislature is composed of a bicameral parliament—the National Assembly,

which represents the people, and the National Council of Provinces (NCOP), which represents the

provinces. The National Assembly participates directly in the legislative process of all bills, while

the NCOP has limited authority regarding legislation that does not affect the provinces. Parlia-

ment possesses significant legislative authority, but this is tempered by the strong executive and

the Constitutional Court.


Legislative authority at the federal level is vested in a bicameral parliament, composed of the

National Assembly (lower house) and the NCOP (upper house).859 The National Assembly rep-

resents the people at large and provides a national forum for consideration of legislation,

whereas the NCOP represents the provinces and is responsible for ensuring provincial inter-

ests are taken into account at the federal level.860 This dichotomy between the two chambers is

vested in their respective legislative powers; the National Assembly participates directly in the

legislative process of all bills, while the NCOP has limited authority regarding legislation that

does not affect the provinces.861

The National Assembly consists of 350–400 members serving five-year terms.862 The NCOP

consists of delegations from all nine provinces, with ten delegates each (six permanent dele-

gates, four special delegates). Special delegates include the premier and three other members

of the provincial legislature.863 Permanent delegates may be selected from among the provin-

cial legislature, yet once they are elected as permanent delegates, they must resign from their

provincial seats.864 Permanent delegates serve five-year terms that coincide with the terms of

the provincial legislatures.865

Legislative authority at the provincial level is vested in provincial legislatures. A provincial legis-

lature consists of between 30 and 80 members, depending on the population of a given prov-

859

S. AFR. CONST., 1996 § 44. 860

S. AFR. CONST., 1996 § 42 cl. 3, 42 cl. 4. 861

See Schedule 4 for a full list of shared competencies and Section 76 Clause 3 for a list of additional areas of

competency. S. AFR. CONST., 1996 §§ 55 cl. 1, 68, 73 cl. 1–4. 862

Number of seats is determined by total population; one seat per every 100,000 persons. As of 2015, there are

400 members. Electoral Law 73 of 1998 sched. 3 cl. 1; S. AFR. CONST., 1996 § 46 cl. 1; Parliament of South Africa, “Na-

tional Assembly,” http://www.parliament.gov.za/live/content.php?Category_ID=26. 863

S. AFR. CONST., 1996 § 60 cl. 2. 864

S. AFR. CONST., 1996 § 62. 865

S. AFR. CONST., 1996 § 62 cl. 3.


174

ince.866 Members serve five-year terms, unless a resolution to dissolve is passed.867 Permanent

delegates to the NCOP may attend and participate in provincial legislative proceedings, but do

not have voting rights.868

The provincial legislatures have the power to approve a provincial constitution as well as to

pass legislation that falls within constitutionally mandated areas of competence.869 (See Political

Structure.)


Within the National Assembly, all decisions are made by majority vote, unless specifically man-

dated by law or the constitution.870 Decisions within the NCOP are similarly made by majority

vote, with each province having one vote.871 Some decisions may require special voting rules;

for example, each delegate in the NCOP has a vote when the chamber presides over legislation

that does not affect the provinces or falls under the shared competencies delineated by the

constitution.872 All decisions in the provincial legislatures are also made by majority vote.873

Any bill can be introduced in the National Assembly, and may be introduced by a cabinet

member, deputy minister, or a member or committee of the Assembly.874 Only a member or

committee can introduce legislation in the NCOP, and legislation is mostly limited to functional

areas that are considered shared competencies between the national and provincial govern-

ments.875 Neither house can initiate money bills (those concerning taxation or government

spending and bills relating to allocating revenue); only the minister of finance may introduce

such a bill.876

866

S. AFR. CONST., 1996 § 105 cl. 2. Number of seats is determined by population, by awarding one seat for every

100,000 persons whose ordinary place of residence is in that province. See also Electoral law 73 of 1998, sched. 3 cl.

2. 867

S. AFR. CONST., 1996 §§ 108 cl. 1, 109 cl. 1. 868

S. AFR. CONST., 1996 § 113. 869

See Schedules 4 and 5 for a list of competencies reserved for provincial governments. S. AFR. CONST., 1996 § 104

cl. 1. 870

S. AFR. CONST., 1996 § 53 cl. 1. 871

S. AFR. CONST., 1996 § 65 cl. 1–2. 872

S. AFR. CONST., 1996 § 75 cl. 2. 873

S. AFR. CONST., 1996 § 112 cl. 1(c). 874

S. AFR. CONST., 1996 § 73 cl. 1–2. 875

S. AFR. CONST., 1996 §§ 55 cl. 1, 68, 73 cl. 3–4. See Schedule 4 for a full list of shared competencies and Section 76

Clause 3 for a list of additional areas of competency. 876

S. AFR. CONST 1996 § 73 cl. 2. A Money bill is defined as one that appropriates money, imposes national taxes, lev-

ies, duties, or surcharges; abolishes or reduces or grants exemptions from any national taxes, levies, duties or sur-

charges, authorizes direct charges against the National Revenue Fund. See S. AFR. CONST., 1996 § 77 cl. 1.


175

Draft legislation must be considered by both chambers of parliament.877 However, if the NCOP

rejects or provides amendments on an ordinary bill that does not affect the provinces, the Na-

tional Assembly can pass the bill with or without the NCOP’s amendments.878

For draft legislation that affects the provinces or falls under shared competencies or other ar-

eas delineated by the constitution, the National Assembly cannot bypass the NCOP. Instead, if

the two chambers disagree, the bill goes to a mediation committee consisting of members of

both chambers.879

Constitutional amendments require approval from both chambers, but the decision-making

rules depend on which section(s) of the constitution is under review.880 Where an amendment

concerns specific province(s), the NCOP cannot pass the amendment until it has been ap-

proved by the legislature(s) in the given province(s).881

Once a bill or an amendment is passed by the appropriate chamber(s), the draft is referred to

the president for assent.882 (See Executive Branch—Structure and competencies.)

Constitutional amendments additionally require that the proposed amendment is published in

the Government Gazette and opened for debate among the provincial legislatures (per the rules

of the National Assembly) and for public comment (per the rules of the NCOP).883

In practice, most legislation is initiated by the executive prior to consideration by the appropri-

ate parliamentary committee.884 Particularly on more politically charged issues, parliament has

been accused of acting as a rubber stamp for executive initiatives.885 The Assembly committees

responsible for vetting draft legislation have, however, scrutinized draft legislation initiated by

the executive and have, in some cases, amended draft legislation on nonpolitically charged is-

sues.886 Civil society groups have played a role in influencing this drafting process.887

877

S. AFR. CONST., 1996 § 73 cl. 5. 878

S. AFR. CONST., 1996 § 75. 879

S. AFR. CONST., 1996 § 76. See Section 76 Clauses 3–5 for a full list of legislation that falls under these procedures,

and see Section 76 Clause 1 for an explanation of what procedures follow the mediation committee’s decisions on

bills. 880

S. AFR. CONST., 1996 §§ 55 cl. 1, 68, 73 cl. 3, 73 cl. 4. 881

S. AFR. CONST., 1996 § 74 cl. 8. 882

S. AFR. CONST., 1996 §§ 74 cl. 9, 75 cl. 1(b)(d), 76 cl. 1(b)(f)(g)(h)(k), 76 cl. 2(b)(c)(f)(g)(h), 79. 883

S. AFR. CONST., 1996 § 74 cl. 5. Public debate facilitated by the NCOP only applies where the proposed amendment

is not an amendment that is required to be passed by the NCOP, which includes amendments to any part of the

constitution except Chapters 1 and 2, and any matters that affect the Council, alter provincial boundaries, powers,

and functions, or institutions; or amend a provision that deals specifically with a provincial matter (S. AFR. CONST.,

1996 § 74 cl. 3). 884

Pierre de Vos, “Key Institutions Affecting Democracy,” 94–116, 98. 885

Pierre de Vos, “Key Institutions Affecting Democracy,” 98–99. 886

Pierre de Vos, “Key Institutions Affecting Democracy,” 98–99. 887

Pierre de Vos, “Key Institutions Affecting Democracy,” 98–99.


176

The legislative process at the provincial level follows many of the same rules that apply at the

national level. Members of the executive council or the provincial legislature can introduce

draft legislation, but money bills can only be introduced by a member of the executive coun-

cil.888 Provincial legislatures additionally have the authority to draft and amend provincial con-

stitutions.889


In general, there are fewer checks on the legislature than on the executive. For example, while

parliament can remove members of the executive, the president cannot dissolve the National

Assembly. The Assembly can be dissolved if a majority of Assembly members vote to dissolve

and three years have passed since the Assembly was elected.890 The Constitutional Court,

however, has the authority to decide whether the parliament has failed to fulfill a constitutional

obligation.891

Legislative powers are checked by the president and the Constitutional Court. After a bill or

constitutional amendment is approved by parliament, the draft is referred to the president for

signature and enactment.892 If the president has reservations about the constitutionality of the

draft legislation, he or she can refer it back to parliament for reconsideration.893 After the draft

legislation is reconsidered and passed by the appropriate chamber(s), the president must sign

the bill into law or refer it to the Constitutional Court to determine its constitutionality.894

The Constitutional Court can intervene in the legislative process if requested by the presi-

dent.895 The Court’s decision is final, and the Court may also decide to suspend implementa-

tion of the law while it adjudicates.896 The Court has found various laws unconstitutional and

returned them to parliament. (See Systems of Election and Selection—Special provisions; Executive

Branch—Checks on the executive; and Public Participation.)

The checks on provincial legislative powers have many of the same features as the laws per-

taining to the national level. Provincial legislatures can only be dissolved when supported by a

majority of its members.897 After a bill is passed by the provincial legislature, the premier can

888

S. AFR. CONST., 1996 §§ 119, 120. 889

S. AFR. CONST., 1996 § 142. 890

S. AFR. CONST., 1996 § 50 cl. 1. 891

S. AFR. CONST., 1996 § 167 cl. 4(e). 892

S. AFR. CONST., 1996 §§ 74 cl. 9, 75 cl. 1(b)(d), 76 cl. 1(b)(f)(g)(h)(k), 76 cl. 2(b)(c)(f)(g)(h), 79. 893

S. AFR. CONST., 1996 § 79 cl. 1. 894

S. AFR. CONST., 1996 § 79 cl. 4. 895

S. AFR. CONST., 1996 § 80. 896

S. AFR. CONST., 1996 § 80 cl. 3, 167 cl. 3(c), 167 cl. 5. 897

S. AFR. CONST., 1996 § 109 cl. a.


177

refer the bill back to the legislature or to the Constitutional Court to assess its constitutionali-

ty.898

d. Committee processes and arrangements

The constitution provides that the National Assembly and NCOP can determine the rules for

the establishment, composition, powers, functions, procedures, and duration of its commit-

tees.899 The constitution includes guidance for the creation of two parliamentary committees:

the joint rules committee and the mediation committee.

The joint rules committee establishes rules and procedures for conducting the business of the

National Assembly and NCOP.900 The mediation committee helps to resolve disagreements on

legislation between the two chambers of parliament. (See Legislature—Decision-making rules

and procedures.) Mediation committee decisions require at least five votes by the members

from the National Assembly and at least five votes by the delegates from the NCOP.901

There are 52 parliamentary committees, organized into seven general categories.902 Joint

committees are those that include members from both chambers of parliament. The commit-

tees oversee work of the executive, focus on internal management issues, or introduce and

consider draft legislation.903

Provincial legislatures can form their own committees and are responsible for establishing the

rules and procedures of their committees.904 Provincial legislative committees can introduce

draft legislation.905

Assessment

Due to both the PR system and to political party policies promoting inclusivity, the legislature is

broadly representative of diverse interests. The NCOP, representative of the provinces, pro-

vides a way for provincial interests to be expressed at the national level. However, the powerful

executive and the ruling party exert significant influence over the legislative process, counter-

ing the representative effect of the legislature.

898

S. AFR. CONST., 1996 § 121. 899

S. AFR. CONST., 1996 §§ 57 cl. 2(a), 70 cl. 2(a). 900

S. AFR. CONST., 1996 § 45 cl. 1. 901

S. AFR. CONST., 1996 § 78 cl. 2. 902

Parliament of South Africa, “Committees,” http://www.parliament.gov.za/live/content.php?Item_ID=137. 903

Parliament of South Africa, “Committees: The Role and Functions of Committees in Parliament,”

http://www.parliament.gov.za/live/content.php?Category_ID=28. 904

S. AFR. CONST., 1996 § 116 cl. 2. 905

S. AFR. CONST., 1996 § 119.


178


The South African constitution calls for public participation within the legislative process at all

levels and, as a result, South Africa has some of the most well-developed mechanisms for public

engagement with governance. Public hearings, the submission of oral and/or written comments,

and a program that brings representatives from all levels of government to each of the nine

provinces aim to enable genuine public engagement. These mechanisms open avenues for the

public to influence governance and express a range of political interests. However, due to access

constraints, many constituents remain unable to participate to the full extent of their rights.


The constitution requires that constituents

have the right to access any information held

by the State, which may include information

held by the executive and its ministries.906 The

Promotion of Access to Information Act (2000)

introduced protections on certain information,

including materials pertaining to national secu-

rity or defense and certain State financial rec-

ords.907


The constitution calls for public involvement in

the legislative process at all levels of govern-

ment.908 Mechanisms to encourage public par-

ticipation include public hearings and the col-

lection of oral and/or written comments re-

garding specific pieces of legislation. At the na-

tional level, draft bills are published in the Gov-

ernment Gazette prior to being introduced in

parliament, and typically include an invitation for public comment.909 The respective parliamen-

tary committee reviewing the legislation may then call for oral submissions or further written

906

S. AFR. CONST., 1996 § 32 cl. 1. 907

For a full list of restrictions, see Promotion of Access to Information Act 2 of 2000 §§33-46 (S. Afr.). 908

S. AFR. CONST., 1996 § 59. 909

See Parliament of the Republic of South Africa, Rules of the National Assembly, 6th ed. (Cape Town: Parliament of

the Republic of South Africa, 2008), Rule 241; and Parliament of the Republic of South Africa, Rules of the National

Council of Provinces, 9th ed. (Cape Town: Parliament of the Republic of South Africa, 2008), Rule 186.


Public Participation

The constitution explicitly states that public par-

ticipation is required in all levels of government.

Further, if the public is not engaged on a particu-

lar piece of legislation, that legislation may be

repealed. As a result, South Africa has developed

several mechanisms that allow constituents to

en-gage their representatives. Public hearings

and the submission of oral and/or written com-

ments are the most commonly used mechanisms.

The National Council of Provinces has also creat-

ed a program called “Taking Parliament to the

People,” which brings government represent-

atives to all nine provinces. (See Public Participa-

tion—Production of legislation.) There are also

some public participation units at the provincial

level that provide educational workshops on how

the legislative process works.


179

submissions, hold public hearings, or initiate other methods for the voicing of public opinion.910

Public hearings are typically announced five days to three weeks ahead of time via individual

invitations and advertisements in newspapers, public spaces, and radio.911

Public participation is also encouraged in the constitutional amendment process. Prior to in-

troducing an amendment in the National Assembly, the amendment must be published in the

Government Gazette for public comment.912 Additionally, the amendment must be open for

public debate, per the rules and procedures of the NCOP.913 Any written comments received

are then shared with the speaker of the National Assembly and the chairperson of the NCOP,

where appropriate.914

The importance of public participation in the legislative process has been widely recognized in

South Africa. In 2006, the Constitutional Court ruled that if public involvement on a given piece

of legislation is not facilitated, the legislation can be found constitutionally invalid and may be

struck down.915 Parliament must provide opportunities for participation, ensure access to in-

formation, and facilitate learning and understanding so that ordinary citizens can meaningfully

participate.916 However, in a separate case, the Court acknowledged that while public participa-

tion must be included, the submissions received are not binding and parliament may pass leg-

islation even if it goes against public opinion.917

The NCOP launched a public participation initiative in 2002 called “Taking Parliament to the

People.” This program provides constituents with the opportunity to directly engage ministerial

and parliamentary representatives from all levels of government. The program visits each prov-

ince at least once during the NCOP’s five-year term, and includes five days of public hearings,

specialized meetings, site visits, and an address by the president. The program brings the pub-

lic, traditional leaders, and national, provincial, and municipal government representatives to-

gether to discuss policy issues and service delivery.918 Topics of discussion are identified by

910

See Parliament of the Republic of South Africa, Joint Rules of Parliament, 4th ed. (Cape Town: Parliament of the

Republic of South Africa, 2008), Rule 23; Parliament of the Republic of South Africa, Rules of the National Assembly,

6th ed., Rule 138; and Parliament of the Republic of South Africa, Rules of the National Council of Provinces, 9th ed.,

Rule 103. 911

Susan de Villiers, A People’s Government, The People’s Voice: A Review of Public Participation in the Law and Policy-

Making Process in South Africa (Pretoria: Idasa, 2001): 44. 912

S. AFR. CONST., 1996 § 74 cl. 5. 913

S. AFR. CONST., 1996 § 74 cl. 5(c). This only applies where the proposed amendment is not an amendment that is

required to be passed by the NCOP, which includes amendments to any part of the constitution except Chapters 1

and 2, and any matters that affect the Council, alter provincial boundaries, powers, and functions, or institutions; or

amend a provision that deals specifically with a provincial matter (see S. AFR. CONST., 1996 § 74 cl. 3). 914

S. AFR. CONST., 1996 § 74 cl. 6—also see previous footnote. 915

Doctors for Life International v. The Speaker of the National Assembly and Others 2006 (12) BCLR 1299 (CC) at 3 (S. Afr.). 916

Doctors for Life International v. The Speaker of the National Assembly and Others 2006 (12) BCLR 1299 (CC) at 72 (S. Afr.). 917

Merafong Demarcation Forum and Others v. President of the Republic of South Africa and Others 2008 (10) BCLR 968

(CC) at 2 (S. Afr.). 918

Parliament of South Africa, “National Council of Provinces concludes its final stage of taking Parliament to the

people” (25 October 2007), http://www.parliament.gov.za/live/contentpopup.php?Item_ID=407&Category_ID=.


180

constituents in preliminary meetings and often include road infrastructure, provision of elec-

tricity, unemployment, land reform, school infrastructure, and provision of health care.919

Despite these efforts, many constituents remain unable to participate to the full extent of their

rights. Pervasive poverty and inequality remain the most significant barriers to political partici-

pation, particularly among historically marginalized groups.920 Access to the legislative process

requires financial resources, education, and knowledge of the political process.921 Language is

also a barrier to participation; although there are 11 official languages, the government primar-

ily operates in English.922 Constituents living in rural areas are also marginalized, as most of the

public hearings occur in the capital or city centers.923 Efforts to advertise opportunities for pub-

lic participation are often inadequate, leading to insufficient information dissemination and the

exclusion of constituents living in the remote corners of the country.

In response to these barriers, the parliament launched an effort to open parliamentary de-

mocracy offices in each of the nine provinces, aiming to expand their reach to rural, underserv-

iced, and underresourced areas.924 As of July 2016, four offices have been opened.925

Efforts to bolster South Africa’s public participation programs have also faced criticism on a

perceived increasing tendency toward insider politics.926 Constituents have expressed frustra-

tion at the disinterest of elected representatives and distrust of the political system. They say

attempts to have their interests heard are watered down or dismissed due to local factionalism

within the political party structure.927


Participation at the provincial level is determined by each provincial legislature and thus in-

cludes a variety of approaches, including public hearings, submissions, and the use of youth or

women’s parliaments and workshops to educate constituencies on the legislative process.928

919

National Council of Provinces, Report: Taking Parliament to the People Programme, Free State Province, 15–19 No-

vember 2010 (Cape Town: Parliament of the Republic of South Africa, 2010): 5. 920

Black African, colored, and Indian/Asian groups were marginalized under apartheid in South Africa. Idasa, Elec-

tions and the Management of Diversity, 21. 921


Dhvani Mehta et al. A Comparative Survey of Procedures for Public Participation in the Lawmaking Process (Oxford:

Univeristy of Oxford, 2011): 18–19. 923

Mehta et al. A Comparative Survey of Procedures, 18–19. 924

Parliament of South Africa, “Parliamentary Democracy Offices,”

http://www.parliament.gov.za/live/content.php?Category_ID=170. 925

Parliament of South Africa, “Parliamentary Democracy Offices.” 926

Susan Booysen, “Twenty years of South African democracy: Citizen views of human rights, governance, and the

political system” (Washington: Freedom House, 2013): 43–44. 927

Booysen, “Twenty years of South African democracy,” 47. 928

See “Public Participation,” Gauteng Legislature, http://gpl.gov.za/index.php/legislative-business/core-

functions/public-participation.html; “Mpumalanga parly to honour Mandela,” SABC News (14 July 2014),

http://www.sabc.co.za/news/a/7d7491004bf8bbb79894ffa583a5af00/Mpumalanga-parly-to-honour-Mandela-


181

The constitution additionally mandates that provincial legislatures facilitate public involvement

in the legislative process and conduct their business in an open manner.929 Some legislatures

have even created a public participation unit to ensure adequate measures are taken to en-

gage the public.930

d. Referendums

There are no provisions in the constitution that require a public referendum. The president

has the authority to call a referendum per the terms of a law passed by parliament.931 Howev-

er, since the end of apartheid, South African laws have not called for a referendum on any is-

sue.

Assessment

South Africa has some of the most well-developed mechanisms for public engagement with

governance, particularly with legislative processes. Public hearings, the collection of oral and/or

written comments on legislation, and the program “Taking Parliament to the People” aim to en-

able public engagement with government decision making. This could be further strengthened

by improving implementation, such as by opening avenues for the public to influence govern-

ance beyond official representation in institutions and allowing the expression of a range of

political interests.


The South African political system includes an organized network of traditional leaders that

serves a consultative role to formal government institutions. This traditional leadership structure

provides an avenue for communicating interests to the executive and legislature that otherwise

would not exist. However, traditional methods of selection of a chief/monarch often exclude

marginalized groups, and while legislation mandates women’s participation in formal traditional

structures, tensions exist over the relationship between traditional authority and the principles

of equality in the constitution.

20121407; “Mpuma’s Women Parly to improve lives,” South African Government News Agency (5 August 2010),

http://www.sanews.gov.za/south-africa/mpumas-women-parly-improve-lives. 929

S. AFR. CONST., 1996 § 118. 930

For example, the Gauteng Public Participation and Petitions Unit, Western Cape Public Participation Directorate,

and Mpumalanga Public Participation Unit. Gauteng Legislature, “Public Participation,”

http://www.gpl.gov.za/index.php/legislative-business/core-functions/public-participation.html; Mehta et al. A Com-

parative Survey of Procedures, 18–19; Western Cape Government, “Participation: Overview” (20 August 2013),

https://www.westerncape.gov.za/your_gov/419; Mpumalgana Provincial Legislature, “Sectoral Parliaments of the

Mpumalanga Legislature,” http://www.mpuleg.gov.za/sectoral-parliaments.html. 931

S. AFR. CONST., 1996 § 84 cl. 2(g).


182

SPECIAL FEATURE: PARALLEL TRADITIONAL AND CUSTOMARY ENTITIES

The South African political system features an organized network of traditional leaders that parallels

the formal government structure from the local to the national level. This network is codified in the

Traditional Leadership and Governance Framework Act (2003) and supported by further national and

local legislation. The South African government created this organized network in an attempt to mod-

ernize the traditional leadership structure while maintaining the legitimacy and legacy of traditional

leaders. The powers and functions of traditional authorities have been a contentious issue since the

transition from apartheid rule. This network is the result of many years of negotiation between the ANC

and traditional leaders. Each traditional house or council advises their respective government on mat-

ters pertaining to customary law, customs, traditional leadership, and traditional communities.

The most basic unit of the traditional structure is the traditional community. When several communities

are grouped and governed together they are referred to as either principal traditional communities or

kingships/queenships (depending on how traditional authority is structured). These entities share a

similar status to the local municipality. Each community/kingship/queenship must have a traditional

leadership council, whose membership is both nominated (60 percent) and elected (40 percent), and

30 percent of which must be women.

To engage with the district municipality governments, the traditional entities form a representative

body called the local house of traditional leaders, which includes members that are selected by an elec-

toral college consisting of all senior traditional leaders/kings/queens residing within a given district mu-

nicipality. The electoral colleges must seek to elect a proportion of women equal to the number of

women senior traditional leaders voting in the election.

Every province, except the Western Cape, has a provincial house of traditional leaders, with members

nominated by each of the local houses within a given province. Some provincial houses require that all

members are also local house members, while others encourage the inclusion of other senior tradi-

tional leaders. All members of the provincial houses must hold the rank of senior traditional leader or

king/queen. While it varies by province, most of the provincial houses have a specific provision calling

for the inclusion of women.

The National House of Traditional Leaders consists of 24 representatives from the eight provincial

houses. Each of the members is selected by secret ballot by members of the Provincial Houses and

serves a five-year term. At least one-third of the members must be women. The National House is pre-

sided over by a chairperson and deputy chairperson who are elected from among its members. Deci-

sions are made by consensus, but a vote can be called as needed. The National House seeks to pro-

mote the role of traditional leadership at all levels of government.

Sources: Traditional Leadership and Governance Framework Act 41 of 2003 (S. Afr.). See National House of

Traditional Leaders Act 22 of 2009 (S. Afr.); Mpumalanga Provincial House and Local Houses of Traditional

Leaders Act 5 of 2006 (S. Afr.); Limpopo Houses of Traditional Leaders Act 5 of 2005 (S. Afr.); House of Tradi-

tional Leaders Amendment Act 5 of 2000 (S. Afr.); North West Houses of Traditional Leadership Amendment

Act 3 of 2005 (S. Afr.); KwaZulu-Natal Traditional Leadership and Governance Act 5 of 2005 (S. Afr.), House of

Traditional Leaders Amendment Act 9 of 2001 (S. Afr.); and Northern Cape Traditional Leadership, Govern-

ance and Houses of Traditional Leaders Act 2 of 2007 (S. Afr.).


183

The South African government has faced challenges in the incorporation of traditional leader-

ship. There is ongoing discussion over the relationship between traditional authority and dem-

ocratic principles, where the selection of a chief/monarch is often based on heredity, not popu-

lar vote, and thus operates without mechanisms of popular accountability.932 Many women cite

discriminatory practices, including the inability to participate in community meetings and other

decision-making proceedings and the absence of land ownership rights for women.933 In most

communities, there is not an established pattern of women’s participation in community deci-

sion making because “women do not have leadership rights under customary law.”934 While

legislation has mandated women’s participation in formal traditional structures, it does not ad-

dress this underlying issue of why many women do not participate in traditional leadership in

the first place.

There is also ongoing debate over whether tra-

ditional leaders should be given more formal

authority. The Congress of Traditional Leaders

of South Africa finds the system of traditional

houses trivial and largely symbolic, due to the

mere advisory powers of the houses and the

lack of resources provided by the government.

Traditional leaders have called for greater

recognition of their role in providing services

where the formal government has fallen short.

935 Despite the creation of formal district munic-

ipalities, traditional authorities are often better

able to deliver services in rural South Africa. Lo-

cal governments in these rural areas remain

weak and largely unable to fulfill their mandate;

they are often overstretched, with a small staff

932

Jo Beall, Sibongiseni Mkhize, Shahid Vawda, “Traditional Authority, Institutional Multiplicity and Political Transition

in KwaZulu-Natal, South Africa,” Working Paper No. 48, Crisis States Programme, Development Research Centre,

London School of Economics (5 July 2004). 933

Christina Murray, “South Africa’s Troubled Royalty,” Law and Policy Paper No.23, Federation Press and Centre for

International and Public Law (Australian National University, 2004): 16. 934

Customary law is rule or practice that has become accepted and expected conduct within a community.

Likhapha Mbatha, “Comment on the Traditional Leaders Framework Bill: Focus on Women's Participation,” Gender

Research Programme Bulletin, Centre for Applied Legal Studies, 2 (2003): 5, as cited in Kristina A. Bentley, “Are the

Powers of Traditional Leaders in South Africa Compatible with Women's Equal Rights?: Three Conceptual Argu-

ments,” Human Rights Review 6, no. 4 (2005): 54. 935

Murray, “South Africa’s Troubled Royalty,” 14.


Traditional Leadership Structure

South Africa’s traditional and customary ar-

rangements include an extensive traditional

leadership structure that parallels the formal

governance system. Traditional leaders are

organized into councils and houses that en-

gage municipal, provincial, and national gov-

ernment representatives. This traditional

structure advises government representatives

on matters pertaining to customary law, cus-

toms, and traditional communities. Traditional

leaders also use this structure to convey the

economic development and service delivery

needs of their communities to government

officials.


184

serving a large area with many communities. In contrast, traditional authorities have long-

established mechanisms for providing basic services and communicating with constituents.936

The legitimacy of the traditional authorities is partly derived from this service function; constit-

uents turn to traditional leaders when the government fails to respond.


The National House of Traditional Leaders advises the national government and president on

issues pertaining to customary law and customs. It also works with the national government to

transform and adapt customary law to comply with the constitution and to improve the coor-

dination of economic development and service delivery in traditional communities.937

The primary function of the eight Provincial Houses of Traditional Leaders is to advise and

make proposals to the provincial governments regarding customary law, customs, or tradition-

al councils.938

At the municipal level, a council of both nominated and elected members assists traditional

leaders or kings/queens in administering the affairs of the community and liaises with the local

municipal government in identifying their community’s needs.939


Any parliamentary bill pertaining to customary law or the customs of the traditional communi-

ties must be referred to the National House for comments.940 The National House is accounta-

ble to parliament and must submit an annual report on its activities.941

At the provincial level, a provincial legislature may refer legislation pertaining to customary law

or customs to the relevant provincial house for comments.942


Dispute resolution in the traditional communities over issues relating to customary law or cus-

tom is foremost the responsibility of traditional entities. The Commission on Traditional Lead-

ership Disputes and Claims hears disputes between traditional communities or other custom-

936

Murray, “South Africa’s Troubled Royalty,” 14. 937

National House of Traditional Leaders Act 22 of 2009 §11 cl. 1 (S. Afr.). 938

Traditional Leadership and Governance Framework Act 41 of 2003 §18 cl. 2 (S. Afr.). 939

Traditional Leadership and Governance Framework Act 41 of 2003 §§4, 4 cl. a-b (S. Afr). 940

Traditional Leadership and Governance Framework Act 41 of 2003 §18 cl. 1 (S. Afr.). 941

National House of Traditional Leaders Act 22 of 2009 §17 cl. 1 (S. Afr.). 942

Traditional Leadership and Governance Framework Act 41 of 2003 §18 cl. 2 (S. Afr.).


185

ary institutions that cannot be otherwise resolved by the parties involved or by the provincial

houses.943

In the principal traditional communities and kingships/queenships, the leadership councils

mediate intercommunity disputes and promote unity across communities in their jurisdic-

tions.944

Assessment

South Africa’s traditional leadership structure provides an avenue for communicating certain

interests to the executive and legislature that are otherwise not explicitly represented in the

electoral system or political structure, including those of some local communities in which tra-

ditional leaders serve a prominent governance function. However, traditional methods of se-

lection of a chief/monarch often exclude marginalized groups, and while legislation mandates

women’s participation in formal traditional structures, it does not address underlying issues of

why many women do not participate in traditional leadership in the first place. The parallel and

consultative nature of the system seeks to reflect the delicate balance between providing a

voice for traditional authorities in the governance system and not prioritizing their interests

over others’.

Conclusion

The South African political system was designed with the aim of promoting inclusion and ac-

commodation, while acknowledging that the diverse and deeply divided country was emerging

from a costly civil war.945 As a result, the constitution includes robust language on the rights

and recognition of South Africa’s many communities, while also enabling a relatively centralized

federal structure that relies on institutions to implement politically accommodating policies.

South Africa provides a number of examples of political accommodation, including the use of

voluntary political party quotas, robust public participation mechanisms, and an extensive tra-

ditional leadership network that parallels the formal government. However, this is tempered by

a growing disillusion among some South Africans with the government’s ability to respond to

constituent needs and interests. Without a strong formal legal framework that promotes de-

centralization and inclusion, implementation of certain measures largely relies on the good

faith of political parties and, more specifically, the ruling ANC party.

943

Traditional Leadership and Governance Framework Act 41 of 2003 §§21, 22 (S. Afr.). 944

Traditional Leadership and Governance Framework Act 41 of 2003 §§4, 4 cl. a-b (S. Afr.). 945

Christina Murray, “Republic of South Africa,” 2.


186

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Conflict Dynamics is a not-for-profit organization registered in Cam-

bridge, MA, USA. The organization was founded in 2004 to prevent and

resolve conflict between and within States, and to alleviate human suf-

fering resulting from conflicts and other crises. Conflict Dynamics

works to fulfill its mission through peacemaking, peacebuilding, and

humanitarian policy development, and has a proven track record in

providing support to national stakeholders and international support-

ers in political dialogue processes.

This compilation was developed for inclusion in Conflict Dynamics’

Governance and Peacebuilding Series. Other publications in this series

include:

Governance In The Sudan: Options For Political Accommodation In The Repub-

lic Of The Sudan (February 2014)

Cultivating Consensus: Exploring Options For Political Accommodation And

Promoting All Somali Voices (February 2014)

Shaping The Future: Prospects For Economic And Political Cooperation Be-

tween South Sudan And The Sudan (August 2013)

Building From The Bottom: Political Accommodation In Somalia At The Re-

gional And Local Levels (June 2013)

Building The House Of Governance: Political Accommodation In South Sudan

(May 2012)

Envisioning The Future: Options For Political Accommodation Between North

And South Sudan Following The Referendum (September 2010)

National Elections And Political Accommodation In The Sudan (June 2009)

Electoral Reform In Sudan And Prospects For Peace In Darfur: Implications Of

The National Elections Act 2008 For The Darfur Political Process (October

2008)

Conflict Dynamics welcomes feedback and perspectives on the ideas in

this case study compilation. Readers are invited to share their views by

contacting Conflict Dynamics at [email protected].

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